FEDERAL COURT OF AUSTRALIA
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE First Respondent COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent |
DATE OF ORDER: | |
WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The third further amended originating application be dismissed.
2. The applicant is to pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | |
GENERAL DIVISION | ACD 72 of 2013 |
BETWEEN: | BRETT COUTTS Applicant
|
AND: | LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE First Respondent COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent
|
JUDGE: | GRIFFITHS J |
DATE: | 3 FEBRUARY 2014 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 The applicant seeks judicial review of a decision under s 28 of the Australian Federal Police Act 1979 (Cth) (the AFP Act) to terminate his employment as a police officer in the Australian Federal Police (the AFP). The proceedings are brought under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).
2 In broad terms, the applicant complains that the decision terminating his employment was made in breach of the rules of procedural fairness (he contends that he was not given a fair hearing and that there was also apprehended bias), breach of other mandatory relevant procedures, failed to take into account relevant considerations, took into account irrelevant considerations, involved the exercise of power in bad faith and was so unreasonable that no reasonable person could have so exercised the power. The applicant also challenges the decision on the basis that it constitutes an abuse of power and is otherwise contrary to law. The applicant further claims that certain conduct leading up to the making of the decision was unlawful and, in support, he relies on some but not all of the heads of review directed to the ultimate decision. As will emerge below, these various heads of review were raised in respect of multiple aspects of the decision-making process, which created an impression that the applicant adopted what could fairly be described as a scattergun attack in calling into question the validity of virtually every aspect of this process. Such an approach carries a grave risk that the challenge is seen to be an impermissible attack on the merits and beyond the legitimate province of judicial review.
Broad outline of the background facts
3 Prior to the termination of his employment, the applicant was employed as a sergeant (band level 6.3) with the AFP. In the early hours of 26 May 2012, the applicant, together with many other AFP officers, were present outside a nightclub in Manuka called “The Cabinet”. I will return below to deal at greater length with the incident which occurred there which gave rise to the complaint that the applicant had used excessive force. At this introductory level, it is sufficient to describe the incident in the following terms. An allegation was made that a male person (whom I will refer to as “Adam”) had indecently assaulted a woman inside the nightclub. Adam was heavily intoxicated and may also have been affected by drugs. Adam was ejected from the nightclub and was then detained by police on the footpath outside and questioned. The victim ultimately told police that she did not want to press charges. The applicant says that he apprehended that Adam was potentially violent. His concerns were based on such matters as Adam’s level of intoxication, physical stature and overall demeanour, which he perceived to be threatening, particularly towards the applicant himself. After Adam had been detained for several minutes and spoken to by several policemen, Constable Robert Raue issued him with a formal move on direction and indicated the direction which he should take to remove himself from the area. As Adam moved away, he walked close to the applicant, was glaring at him and flinched. The applicant claims that he became concerned that he was about to be assaulted by Adam and he used Oleoresin Capsicum Spray (capsicum spray) from a distance of approximately 30 cms to the right side of Adam’s face, also accidentally spraying a female member of the public who was nearby. The applicant then held Adam’s head in a headlock before taking him into custody and, with the assistance of other police officers, placed him in the back of a caged police vehicle. These events outside the nightclub were captured on CCTV, about which I will say more shortly.
4 On 6 June 2012, Sgt Scott Walls (who was present during the incident) (the complainant) made a complaint to the AFP in relation to the applicant’s conduct on 26 May 2012. On 7 June 2012, an investigation was commenced by Federal Agent Paul Deller (FA Deller), who was a member of the AFP’s Professional Standards Investigation Unit (the PRSIU). The PRSIU is the unit constituted under s 40RD of the AFP Act to undertake investigations of inter-alia “category 3 conduct issues” (see further below). The subject matter of the investigation was particularised as follows:
On 26 May 2012, Sergeant Brett COUTTS (AFP 11314) seriously breached section 8.10 of the AFP’s Code of Conduct (appointees must behave in a way that upholds the good order, discipline and security of the AFP) by using excessive force on [Adam], contrary to Commissioners’ (sic) Order on Use of Force (CO3) (the complaint).
5 The following day, the applicant was suspended from duty with pay under reg 5 of the Australian Federal Police Regulations 1979 (Cth) (the Regulations). On 10 July 2012, the applicant participated in a taped record of interview conducted by FA Deller and Federal Agent Matthew See (FA See). At the applicant’s request, the interview took place in the presence of Supt Kylie Flower (who attended as an “interview friend”) and Mr Rogan McMahon-Hogan (who was team leader of the employment and legal office at the Australian Federal Police Association (AFPA)). FA Deller also conducted what are described as “directed interviews” with several other people, including the complainant and other police officers who were present when the incident occurred. The significance of those interviews, which were conducted under compulsion of statute, will emerge below.
6 On 22 August 2012 FA Deller produced an investigation report (the investigation report) which recommended that it be found that the applicant had breached s 8.10 of the AFP Code of Conduct by using excessive force contrary to CO3. Although FA Deller could have made a recommendation under s 40TR(1) of the AFP Act regarding sanctions, his report contained no such recommendation.
7 On 29 August 2012, FA Deller provided the applicant with a redacted copy of the investigation report minus all its appendices. The applicant was invited to provide a written response. He did so in a 55 page written submission dated 15 October 2012.
8 On 26 November 2012, FA Deller’s report, together with all of its appendices and some other material, was forwarded to Mr Peter Whowell under s 40TU of the AFP Act. At that time, Mr Whowell was a member of the AFP Professional Standards Adjudication Panel (the Panel). Mr Whowell had been appointed to the Panel under s 15.2 of the Australian Federal Police Commissioner’s Order on Professional Standards (CO2), which was made under ss 38 and 40RC of the AFP Act. Mr Whowell’s role, in accordance with s 15.2 of CO2, was to consider the recommendations made in a report to the Manager of the Professional Standards Investigations Unit (MPRS) pursuant to s 40TU of the AFP Act and to make findings and determine appropriate action in relation to the relevant issues under s 40TR. Mr Whowell had delegated authority to determine what if any sanction should apply, including the possibility of terminating the employment of an AFP employee if the person occupied any of the four specified positions, which included the applicant’s rank. For the purpose of conducting his adjudication of whether the applicant had engaged in category 3 conduct and any appropriate sanction under s 40TV of the AFP Act, Mr Whowell had before him various materials, which included the applicant’s written natural justice response dated 15 October 2012, a copy of the taped record of interview with the applicant, a taped record of interview with the complainant, and an unredacted copy of FA Deller’s report, including all the appendices. The investigation report forwarded to Mr Whowell also included information to the effect that it had been “quality assured” separately by two other members of the PRSIU, namely Team Leader Matthew Lyddiard in the first instance and then Coordinator Con Coutsolitis. (The applicant was not aware of those matters when he provided his natural justice response and, as will emerge below, he complains that this denied him procedural fairness.)
9 After reading all the material before him and watching the CCTV footage, Mr Whowell concluded that the description of events in [4.1] of FA Deller’s report was accurate. He also concluded that the salient points of the interviews with different persons at Appendices E-L of the investigation report were accurately summarised in the section headed “Interview of attending members” at pages 16-19 of the report. He concluded that the description of the accounts of what had occurred was consistent with his review of the CCTV footage. After also taking into account the applicant’s description of the incident, as set out in the investigation report, Mr Whowell concluded that the category 3 conduct issue raised against the applicant was established.
10 Having reached that determination, Mr Whowell then turned his mind to what sanctions should be recommended. He noted from Appendix B to FA Deller’s report that at the time of the incident on 26 May 2012, four separate complaints of category 3 conduct against the applicant for excessive use of force in May and June 2010 had been established. He also noted that seven sanctions had been recommended in response to PRSIU investigations of another 20 complaints against the applicant. Those complaints had been combined into one overall assessment and recommendation for action by the PRSIU. Mr Whowell also took into account that the applicant had been provided with a formal warning notice dated 28 November 2011, which included a warning that were he to be found to have engaged in behaviour that breached the AFP code of conduct and was a serious breach, his suitability to remain employed by the AFP “will be reconsidered”. Mr Whowell was not aware at the time of any remedial action taken in response to the previous recommendations as to sanctions referred to above. Mr Whowell concluded that if none of those previous recommended actions had been taken, then remedial actions of a similar kind should be taken with a view to assisting the applicant to recognise the seriousness of his behaviour and to address it. Alternatively, if some or all of the recommended sanctions or actions had been implemented, yet the applicant used excessive force against Adam, Mr Whowell thought that the applicant’s suitability to remain an AFP employee should be considered.
11 Mr Whowell’s findings, reasons and recommendations were set out in a report by him entitled “Adjudication of a Category 3 AFP Conduct Issue” dated 4 January 2013 (the Adjudication Report). A copy of the Adjudication Report was sent to the MPRS.
12 On 22 February 2013, an officer within the PRSIU forwarded a further report and 10 annexed documents to the first respondent for her to consider the applicant’s employment suitability (the Show Cause Brief). The 10 annexures were as follows:
Annexure 1 – the investigation report dated 22 August 2012, together with all appendices less the CCTV footage;
Annexure 2 – the applicant’s response to the investigation report;
Annexure 3 – FA Deller’s review of the applicant’s response;
Annexure 4 – the Adjudication Report;
Annexure 5 – extracts from Part V of the AFP Act;
Annexure 6 – the applicant’s organisational deployment history;
Annexure 7 – the applicant’s antecedents (i.e. his disciplinary history);
Annexure 8 – the applicant’s performance development assessments;
Annexure 9 – a minute from Cmdr Johnson to the applicant dated 28 November 2011 entitled “Formal Warning Notice - Professional Standards”; and
Annexure 10 – a copy of the AFP Practical Guide on the Alpha 8 Role (ACT Policing) (2010).
13 On 28 February 2013, the first respondent handwrote on the Show Cause Brief that she had read all of the material in the brief. She also handwrote brief reasons why she had determined that she should consider terminating the applicant’s employment. The first respondent signed a letter dated 28 February 2013 entitled “Show Cause Notice: Consideration of Termination of Employment Section 28 - Australian Federal Police Act 1979 (Cth)” (Show Cause Notice).
14 A copy of the Show Cause Notice was sent to the applicant and he was invited to provide a response within 28 days. The applicant was also provided with various other materials, including a copy of the 10 annexures to the Show Cause Brief, some of which contained redactions. Appendices A-P of FA Deller’s investigation report were not included in the documents which accompanied the Show Cause Notice.
15 By letter dated 2 April 2013, the applicant provided his written response to the Show Cause Notice.
16 On 27 May 2013 a minute, entitled “Section 28 Consideration of Employment (Post Show Cause) Brief” (Post Show Cause Brief), Cmdr David McLean (who had replaced Cmdr Johnson as the MPRS), was provided to the first respondent on the subject of the applicant’s employment suitability. The minute was accompanied by the following four annexures:
Annexure 1 – a copy of the Show Cause Brief which had previously been provided to the first respondent;
Annexure 2 – the applicant’s response to the Show Cause Notice;
Annexure 3 – a minute (including annexures) from the ACT Chief Police Officer entitled “Advice of Sanctions Imposed on Sgt Brett Coutts” received by MPRS on 13 January 2012, which recorded the actions taken against the applicant arising from Cmdr Johnson’s report dated 28 November 2011; and
Annexure 4 – extracts from Part V of the AFP Act.
17 By a minute dated 14 June 2013, the first respondent notified the MPRS that, having reviewed the minute dated 27 May 2013 and the accompanying material, she had determined to terminate the applicant’s employment. She requested the MPRS to draft a notification letter to send to the applicant.
18 By letter dated 18 June 2013, the first respondent notified the applicant of her decision to terminate his employment effective 15 July 2013 pursuant to s 28 of the AFP Act (the decision). In taking that action, the first respondent was acting in accordance with a delegation set out in an attachment to the Commissioner’s Order on Administration (CO1).
19 The Court was informed that, at the time of the hearing of the proceeding, as a result of an undertaking given by the second respondent, no action had been taken to implement the decision and he remained suspended on full pay.
Summary of relevant provisions of the AFP Act, regulations and other instruments
AFP Act
20 The key relevant provisions of the AFP Act may be summarised as follows.
21 The Commissioner is empowered by s 24 to engage persons as AFP employees. The Commissioner is also empowered by s 28 to terminate the employment of an AFP employee.
22 Part V deals with national standards and AFP conduct and practice issues. The Commissioner is empowered by s 40RC to issue orders under s 38 determining the professional standards to be complied with by AFP appointees. It was under this provision that various relevant instruments or orders were issued, including CO1.
23 Subdivision C of Division 1 of Part V imposes an obligation on the Commissioner to establish a unit within the AFP to undertake national standards functions. As noted above, the unit which has been established for this purpose is known as the PRSIU. Under s 40RF the Commissioner may assign a member of the AFP to that unit.
24 The AFP relevantly defines “an AFP conduct issue” in s 40RH as an issue of whether an AFP appointee has engaged in conduct that contravenes the AFP professional standards. There are 4 categories of AFP conduct issues as set out in s 40RK: in ascending order of seriousness they are category 1, category 2, category 3 and conduct giving rise to a corruption issue. Notably, category 3 is the penultimate category in terms of seriousness. Sub-section 40RL(3) defines a category 3 conduct issue as “an issue of whether an AFP appointee has engaged in category 3 conduct”. The Adjudication Report found that the complaint against the applicant, which involved category 3 conduct, was established.
25 Division 2 of Part V deals with how an AFP conduct issue may be raised. Under s 40SA any person may give information to the Commissioner or to AFP appointees which raises an AFP conduct issue. The Commissioner has a discretion under s 40SD as to whether or not an AFP conduct issue is to be dealt with under Part V of the AFP Act. The Commissioner also has a discretion under s 40TA to issue orders under s 38 in relation to how AFP conduct issues are to be dealt with by AFP appointees under Part V. Section 40TD deals with some of the different types of remedial action which can be taken in relation to an AFP appointee to remedy unsatisfactory performance. Section 40TE deals with termination action and defines such action in the case of an AFP employee as the Commissioner terminating the AFP employee’s employment under s 28. Section 40TF confers a discretion on the Commissioner to take no further action in relation to an AFP conduct issue if the Commissioner is satisfied of one of the matters there specified.
26 Subdivision D of Part V deals specifically with category 3 conduct issues (as well as corruption issues). The seriousness with which category 3 conduct issues are viewed is reflected in the fact that, under s 40TM the head of the PRSIU must notify the Ombudsman of any category 3 conduct issue.
27 The legislative regime for investigating a category 3 conduct issue may be described in broad terms as follows. Under s 40TN (and subject to s 40TO, which is not relevant here), the head of the PRSIU must allocate the issue to be investigated by a person who is a member or special member. Section 40TP provides that a category 3 conduct issue may be allocated to a person under s 40TN if the person has appropriate qualifications or experience to conduct the investigation of the issue.
28 Section 40TQ deals with how a category 3 conduct issue is to be dealt with. In view of its importance to the proceeding I will set it out in full:
40TQ How category 3 conduct issue or corruption issue is dealt with
(1) This section applies if the issue is allocated to a person under section 40TN or 40TO.
(2) In investigating the issue, the investigator must:
(a) ensure that:
(i) the AFP appointee; and
(ii) the complainant (if any);
have, subject to the requirements of the investigation, an adequate opportunity to be heard in relation to the issue; and
(b) consider whether the information:
(i) given under section 40SA in relation to the issue; or
(ii) obtained in the course of dealing with the issue;
raises an AFP practices issue.
29 Section 40TR is another relevant provision. It confers a discretion on an investigator to make certain recommendations if the investigator is satisfied, on reasonable grounds, that an AFP appointee has engaged in category 3 conduct. It is in the following terms:
40TR Recommendations that may be made in relation to category 3 conduct or corrupt conduct
(1) If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct or corrupt conduct, the investigator may recommend that any one or more of the following be taken in relation to the AFP appointee:
(a) termination action;
(b) remedial action;
(c) training and development action;
(d) any other action that the Commissioner can take in relation to the AFP appointee.
Note 1: For termination action, see section 40TE.
Note 2: For remedial action, see section 40TD.
Note 3: For training and development action, see section 40TC.
Note 4: If evidence emerges, at any stage of the investigation, that the AFP appointee may have committed an offence, the investigator could also arrange for the AFP appointee to be charged with the offence. This might be done even before the investigation of the issue is completed. The AFP appointee might be charged with the offence even if the investigator does not recommend that termination, remedial or training and development action to be taken in relation to the AFP appointee.
(2) To avoid doubt, the Commissioner may take termination action in relation to an AFP employee whether or not a recommendation has been made by an investigator that termination action be taken in relation to the employee.
30 Section 40TS provides that the powers of an investigator investigating a category 3 conduct issue are the powers provided for in Division 5, to which I will return shortly. On completion of the investigation of a category 3 issue, an investigator is obliged by s 40TU to prepare a written report of the results of the investigation and, relevantly, to give the report to the head of the PRSIU. Without limiting that obligation, s 40TU(3) provides that such a report must include any recommendations that the investigator makes under s 40TR. An obligation is imposed on the Commissioner by s 40TV to ensure that any recommendations made in such an investigation report are fully considered and appropriate action is taken.
31 As noted above, an investigator’s investigative powers are set out in Division 5. They may be summarised as follows:
(a) the investigation is to be conducted, subject to the rest of Division 5, in such manner as the investigator thinks fit;
(b) under s 40VC the investigator may obtain information from such persons, and make such enquiries, as he or she thinks fit; and
(c) the investigator is empowered by s 40VE to give directions to an AFP appointee to give the investigator information, produce a document, answer a question or do anything else that is reasonably necessary for the purpose of obtaining evidence in relation to the investigation or inquiry. Failure to comply with a valid direction is an offence under s 40VH(1).
32 It was under s 40VE that FA Deller conducted directed interviews with various persons, including the complainant, the applicant and some other AFP officers. Interviews were also conducted with various civilian witnesses. Adam was not interviewed for the purposes of that investigation (a matter which forms part of the applicant’s procedural unfairness case).
The Regulations
33 Regulation 5 of the AFP regulations deals with suspension from duties and is relevantly in the following terms:
5 Suspension from duties
(1) The Commissioner may suspend an AFP appointee from duties:
(a) if the Commissioner believes on reasonable grounds that the appointee:
(i) has, or may have, engaged in conduct that contravenes the AFP professional standards; or
…
Other relevant instruments
34 It is also appropriate to summarise the content of various other relevant formal instruments. Those instruments are:
(a) the Commissioner’s order on professional standards (CO2);
(b) the Commissioner’s order on use of force (CO3);
(c) the AFP categories of conduct determination 2006; and
(d) the AFP national guideline on complaint management.
(a) CO2
35 CO2 was made by the Commissioner pursuant to inter alia ss 37 and 38 of the AFP Act, as well as reg 33 of the Regulations. The stated purpose of CO2 is to give effect to relevant provisions of Part V of the AFP Act by setting out the professional standards of the AFP to maintain the good order and discipline of the organisation and to outline the AFP complaint management methodology and processes, including the roles of AFP appointees and of PRSIU and the Panel. Clause 8 of CO2 is entitled “AFP Code of Conduct”. Under clause 8.1, it is provided that adherence to the AFP code of conduct is fundamental to complying with the professional standards of the AFP. Of particular relevance is cl 8.10, which is in the following terms:
An AFP appointee must behave in a way that upholds the good order, discipline and security of the AFP.
36 Clause 15 deals with adjudication of category 3 conduct issues. It provides:
15.1 Adjudication is the official decision making process to establish outcomes for category 3 misconduct and corruption issues.
15.2 The Commissioner may establish and maintain an AFP Professional Standards Panel (the Panel) to:
• consider the recommendations in a report made to MPRS pursuant to s 40TU of the Act
• make findings and determine appropriate action in relation to the issue or issues pursuant to s 40TR of the Act, with the exception of s 40TR(1)(a).
15.3 The Panel will comprise MPRS and authorised senior executive AFP employees. The Commissioner can also appoint external appointees with appropriate knowledge and experience as a senior executive. To ensure consistent practice, MPRS will be responsible for managing, directing, and quality assuring the panel’s decision making.
15.4 The process for adjudicating category 3 conduct issues and corruption issues is detailed in the AFP National Guideline on Complaint Management.
15.5 Attachment 2 to this Order provides a table of authorisations including those for the adjudication of Category 3 AFP conduct issues and corruption issues.
(b) CO3
37 CO3 is the Commissioner’s order giving effect to AFP policy regarding the use of reasonable force and its implementation. Clause 2 deals with the use of force and relevantly provides:
2.1.1 Use of reasonable force underpins all AFP conflict management strategies and the AFP’s use of force model. Reasonable force is the minimum force reasonably necessary in the circumstances of any particular case. The principles of negotiation and conflict de-escalation are always emphasised as alternatives to the use of physical force as the safety of AFP employees and members of the public is of paramount importance.
…
2.1.3 Excessive force is force beyond that reasonably necessary in the circumstances of any particular case including:
• any force when none is needed;
• more force than is needed;
• any force or level of force continuing after the necessity for it has ended;
• knowingly wrongful use(s) of force; or
• well-intentioned mistakes that result in undesired use(s) of force.
…
2.1.6 An AFP employee…must, at all times, only use the minimum amount of force in the performance of his or her duty and must draw on the range of use of force and negotiation options as well as the decision making skills developed through AFP training.
38 Clause 6 deals with the use of chemical agents (such as capsicum spray) and is relevantly in the following terms:
6.1 General
1. An AFP employee or special member may only use chemical agents against another person where he or she believes on reasonable grounds that their use is necessary in order to:
a. defend him or herself, or others from physical injury in circumstances where protection cannot be afforded less forcefully;
b. arrest a person whom he or she believes, on reasonable grounds, poses a threat of physical violence and the arrest cannot be affected (sic) less forcefully;
c. resolve an incident where a person is acting in a manner likely to seriously injure him or herself and the incident cannot be resolved less forcefully; or
d. to deter attacking animals.
….
(c) AFP categories of conduct determination 2006
39 This determination was made under s 40RM(1) of the AFP Act. It contains a table which characterises conduct into different categories. Table 3 describes category 3 conduct issues and includes an entry dealing with “excessive force (on person)” and the example given is:
Includes using force against a person that was not justified by a warrant or the law.
(d) AFP national guideline on complaint management (the Guideline)
40 This Guideline, which was first published on 29 January 2007 and has since been modified, was issued under s 37(1) of the AFP Act by way of a delegation to the National Manager Human Resources under s 69C of the AFP Act. It describes the roles and functions of AFP appointees in dealing with complaints and determines complaint management methodology and processes to be used in accordance with Part V of the AFP Act. It is stated to be part of the AFP’s professional standards framework and it is further declared that “[i]nappropriate departures from the provisions of this instrument may constitute a breach of AFP professional standards and be dealt with under Part V of the [AFP Act]”.
41 Clause 14 of the Guideline deals with the management and investigation of category 3 conduct issues.
42 Clause 15 deals with adjudication of category 3 conduct issues. It refers to CO1 as delegating the authority to ensure appropriate action is taken in relation to category 3 conduct issues. It further provides that MPRS may allocate investigation reports to adjudication panel members to adjudicate. It also provides as follows:
All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation…
Summary of evidence in the judicial review proceeding
43 The applicant swore an affidavit in support of his judicial review application and was cross-examined. He described his employment with the AFP after he joined in November 2001. He said that in March 2003, a complaint against him for use of excessive force (category 3 complaint) was established which led to him being counselled. The incident occurred when he was arresting a member of the public for being intoxicated and displaying disorderly behaviour in a public place and the applicant used some force to take the person into custody.
44 The applicant was transferred to the Territory Investigations Group (TIG) in November 2003. He gave evidence of an incident which occurred in 2004 in which it was alleged that the applicant had falsely sworn an affidavit in support of an application for a search warrant by stating that the information had been received from a registered informant when in fact the informant was unregistered. The applicant said that around that time the first respondent was involved in a meeting with him and others regarding the allegation. He said that he and the first respondent had a loud and assertive conversation in which he disagreed with what she said. He says that the first respondent appeared to be upset with him because he challenged her.
45 In late 2004 or early 2005, the first respondent was transferred to TIG and became the applicant’s superintendent. He gave evidence of a separate incident which took place in July 2005 in which he says, in the course of a conversation he was having with another police officer, he made a joke in a manner which could be overheard by a receptionist and he wanted to see if she reported him to the first respondent. He also gave evidence of another incident in May 2006 in which he claims that another AFP officer told him that the first respondent had said that he “can get out of TIG”. This evidence was disallowed as hearsay, but the incident was still pressed by the applicant.
46 In July 2008 the applicant was appointed acting sergeant within ACT police operations and was formally promoted to sergeant on 18 December 2008. In June 2009 he was transferred to the City Beat Team within the City Police Station. That team specialised in dealing with alcohol related crime in the city precinct. The applicant was appointed team leader and managed a team of four other AFP officers. He says that there were no complaints against himself or any member of the team during the first six months of their work.
47 In July 2010 the applicant learned that PRSIU were conducting investigations into complaints against him of use of excessive force. Although the applicant requested that he be transferred out of the City Beat Team while the complaints were being investigated, his request was declined. His use of force certification was rescinded, which meant that he was denied use of capsicum spray, handcuffs and firearms. He was effectively restricted to doing work of an administrative or office nature. In late August 2010 he was transferred to Belconnen police station to carry out the role of operations support sergeant, which mainly involved administrative tasks.
48 On 12 October 2010 the applicant was invited by PRSIU to participate in five criminal caution interviews relating to two allegations of assault occasioning actual bodily harm, two allegations of common assault, and one allegation of intentionally making a false statement. The applicant declined to participate in any PRSIU interviews and all the charges were referred for internal disciplinary proceedings. In his affidavit, the applicant gave evidence of his involvement in the four incidents the subject of those internal disciplinary proceedings.
49 The applicant gave evidence that in December 2010 he approached the then ACT Chief Police Officer (Mr Roman Quaedvlieg) and told him that he was uncomfortable about the first respondent making decisions concerning the complaints against him because there was a history between them and they had disagreed in the past. He says that the Chief Police Officer said that he would speak with the first respondent. I accept that evidence.
50 He also gave evidence of an incident which took place at Belconnen police station in August 2011 which gave rise to complaints that he had used excessive force in effecting an arrest, which were investigated by PRSIU and found to be not established. In September 2011 the applicant was transferred to Police Operations, shortly before the PRSIU investigation into the four incidents described above were completed. He says that he had a conversation with the ACT Chief Police Officer in December 2011 in which he was told that he would be moved back to criminal investigations where his skills could be used. He also says that the Chief Police Officer told him that the first respondent “wanted to give you a “show cause” to teach you a lesson”.
51 The Chief Police Officer arranged for the applicant to be assessed by an AFP psychologist in January 2012. The report of his assessment stated that he did not have any anger management problems.
52 In early 2012, the applicant was re-certified in use of force. He gave evidence as to the duties he performed in the role of “Alpha 8”, which involved him assisting sergeants on patrol at critical incidents. He then gave evidence of an incident which occurred on 25 May 2012 when the police were called to a university college ball. He described how he was involved in arresting a female for intoxication and disorderly conduct and how her complaint against him of excessive use of force was investigated and found to be not established.
53 The applicant gave detailed evidence of his account of the central incident on 26 May 2012 which is at the heart of the decision to terminate his employment. He says that he was justified in using capsicum spray in arresting Adam because he considered that Adam posed a threat of physical violence in circumstances where:
(a) Adam was a man of significant physical stature;
(b) he had been involved in a violent incident immediately prior to speaking with the police;
(c) he was assessed as being intoxicated by alcohol and other illicit substances;
(d) his behaviour was deteriorating;
(e) there was a biological hazard posed by blood on his hands; and
(f) he was aggressive and threatened aggression towards the applicant which was said to include clenching his fists and flexing his arms and feigning a head-butt.
54 The applicant also gave detailed evidence of his involvement in the PRSIU investigation into the incident of 26 May 2012. That evidence included the applicant obtaining access to a copy of the CCTV footage of the incident without going through normal procedures. He says he was later investigated by the PRSIU for failing to complete the proper request to view the CCTV footage. He claims that the PRSIU then raised another complaint against him for allegedly using his position to gain a benefit or advantage in accessing the CCTV footage. He claimed further that he understood that the PRSIU had concluded that both complaints were established but that he had never received any adjudicated finding on those two matters.
55 The applicant also sought to rely on affidavits sworn by his father and his wife. I ruled those affidavits to be inadmissible in a judicial review proceeding. The applicant also relied on affidavits by three other police officers who were present at the relevant incident and were subsequently interviewed by PRSIU (Constables Nathan Nallo, Chris Carter and Troy Lawrence). He also relied on two affidavits by members of the Australian Federal Police Association (the AFPA), one by its chief executive officer (Mr Dennis Gellatly) and another by the team leader of the employment and legal office at the AFPA (Mr Rogan McMahon-Hogan). The applicant also relied on an affidavit by the former ACT Chief Police Officer, Mr Roman Quaedvlieg.
Outline of applicant’s argument
56 The applicant amended his originating application several times, including during the course of the hearing. Ultimately he relied on the third further amended originating application, which was filed in Court, without opposition from the respondents, at the commencement of closing addresses on 19 December 2013. He also relied upon a reply dated 19 November 2013, which was filed after receipt of the respondents’ amended defence dated 8 November 2013. It is convenient to summarise his case as it was ultimately presented in closing address by reference to the individual heads of review raised in the third further amended originating application and the reply.
57 As noted above, the applicant’s case as presented could reasonably be described as involving a scattergun attack on the decision and the decision-making process. The termination decision and the conduct leading up to its making was challenged under no less than 13 separate individual heads of judicial review, many of which were extensively particularised in a way which gave rise to multiple challenges to virtually every aspect of the decision-making process. Taking into account some clarification by the applicant’s senior counsel during closing addresses as to whether the particulars of the multiple heads of review were intended to be read collectively or individually, the applicant’s judicial review challenge involved in total more than fifty individual allegations of unlawfulness and invalidity. That number would almost treble if the numerous extracts from the directed interviews the subject of the applicant’s procedural unfairness complaint were counted individually, as intended by the applicant. Although it is theoretically possible that public administrative decision-making might be susceptible to successful judicial review on such multiple bases, that is only likely to occur in a most extreme case. It is far more probable, as is the case here, that such an approach simply serves to highlight the fact that the judicial review challenge is in large measure a thinly veiled attack on the merits of relevant decisions and conduct.
58 The limits on judicial review are well established. Having regard to the presentation of the applicant’s case here it seems necessary to repeat and emphasise the much quoted observations of Brennan J in Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 35-36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
59 I will now summarise the applicant’s multiple claims of invalidity.
Procedural unfairness
60 The applicant makes numerous allegations of procedural unfairness under both limbs of that principle. It is convenient to summarise first his complaints of apprehended bias, before outlining his complaints that he was not given a fair hearing.
(a) Apprehended bias
61 In support of his claim of apprehended bias in respect of the first respondent, the applicant relies on:
(a) the three incidents involving him and the first respondent which occurred in 2004, 2005 and 2006, the broad details of which were further described above;
(b) the fact that he twice raised his apprehensions of bias on the part of the first respondent with the then Chief Police Officer of the ACT;
(c) the fact that there was no allegation made against him prior to 18 June 2013 that he had assaulted and intimidated a member of the public and he was given no prior opportunity to respond to that allegation, rather the only allegation made against him up until that time was that he had used excessive force; and
(d) the investigation report provided to him for the purposes of his natural justice response was redacted and did not include Appendices A-O.
62 In his penultimate further amended originating application, the applicant also advanced for the first time a case of apprehended bias on the part of the first respondent arising from the conduct of FA Deller. That case was based on the following matters:
(a) FA Deller’s conduct during the taped record of interview with the applicant in refusing to discuss or disclose the evidence of other witnesses and his comments on the CCTV footage when it was shown to the applicant;
(b) alleged deficiencies in the investigation report, being:
(i) inaccurate or insufficient summaries of other witnesses’ evidence when requested to provide the same;
(ii) inaccurate or insufficient summaries of the evidence given by other witnesses set out as “salient points” in Appendices E-K to the investigation report;
(iii) non-disclosure of relevant evidence of other witnesses;
(iv) non-disclosure of the fact that Adam was not a complainant; and
(v) non-disclosure as to whether Adam had given or refused to give a statement or be interviewed by PRSIU;
(c) failure to disclose the substance and/or purpose of additional enquiries made by FA Deller of various persons after the applicant had been provided with the investigation report and was still to provide his first natural justice response;
(d) failure to disclose the substance and/or purpose of further additional enquiries made by FA Deller with those persons after the applicant provided his first natural justice response;
(e) failure to disclose that the salient points were expanded after receipt of the applicant’s first natural justice response; and
(f) comments made by Sgt Whittaker in FA Deller’s presence in June 2012.
63 The applicant submits that the first respondent’s decision was vitiated by FA Deller’s apprehended bias because he was a “significant subordinate officer ” in the decision-making process in the sense described by Gleeson CJ in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [23]. The applicant accuses FA Deller of prejudgement and having a closed mind which was not open to persuasion. He claims that FA Deller’s approach to the evidence revealed that FA Deller had preconceived views, which he says was reflected in such matters as FA Deller’s selective and inaccurate summaries of the evidence in both the investigation report and in the “salient points” which were contained in various appendices to that report.
(b) Unfair hearing
64 The applicant separately complains of procedural unfairness by reference to the fair hearing limb of that doctrine. This aspect of his case overlaps with his claims that procedures set out in the AFP Act had not been complied with (see further below). In essence, he says that he was not afforded a fair hearing because:
(a) he was not provided with a taped record of interview of the complainant or a redacted transcript of that interview;
(b) he was not provided with tapes of the directed interviews of any witnesses and/or transcript of interviews with any such witnesses in a redacted or unredacted form;
(c) he was not provided with Appendices A-O of the investigation report, which included appendices setting out the “salient points” of various interviews;
(d) he was not provided with accurate summaries of evidence relied upon by FA Deller and by the adjudicator (revised extracts of the relevant directed interviews were appended to the third further amended originating application). To avoid duplication, I will defer particularising the applicant’s multiple allegations of deficiencies concerning the summaries of the interviews;
(e) the applicant was not given an opportunity to be heard in relation to the alleged finding that he assaulted and intimidated a member of the public;
(f) the version of the investigation report provided to the applicant on or about 29 August 2012 was redacted and did not include Appendices A-O (including Appendices E-K which set out the “salient points” of the directed interviews with numerous witnesses), with the consequence that the applicant claims he was denied an opportunity to ascertain whether the summaries of the evidence of each witness accurately reflected their evidence;
(g) he was not provided with an accurate summary or the totality of Supt Timson’s expert evidence on use of force;
(h) between 23 August 2012 and 15 October 2012, FA Deller made additional enquiries relating to his investigation and did not provide the applicant with the information he thereby obtained before the applicant was required to provide his response to the investigation report;
(i) because of the matters raised above, the applicant was denied the opportunity of properly responding to the complaint made against him and the evidence purportedly relied upon by FA Deller when he provided his natural justice response on 15 October 2012;
(j) between 15 October 2012 and 29 November 2012 FA Deller made further enquiries with various persons and included them in a response to the applicant’s natural justice response and although providing that information to the adjudicator, FA Deller did not disclose it to the applicant;
(k) because of the matters raised above, the applicant was denied the opportunity of properly responding to the Show Cause Notice and the termination decision; and
(l) the applicant contends that the matters at paragraphs (a) to (j) were significant to the proper consideration of whether or not the complaint was established and may have affected the adjudication and decision in a material way.
65 The applicant relies on Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 in support of his contention that he should have received the totality of the evidence and without any redactions. He complains that he was prejudiced because the redactions prevented him from identifying who were the key witnesses and what they were supposed to be doing and/or witnessing, thereby denying him a proper opportunity of addressing the complaint. He complains that the “key points” in the investigation report were inadequate and that he was prejudiced in not receiving Appendices A-O which contained the “salient points” of each interview. He denies that the redactions were justified for confidentiality reasons. The inaccuracies in the “key points” of which the applicant complains were identified in the applicant’s final further written submissions which were produced prior to closing addresses. They concern alleged inaccuracies in relation to the summaries in the investigation report of the evidence given by Sgt Walls; Constables Lawrence, Raue, Nallo, Carter and Clarke, as well as Supt Timson.
66 As to the complaint that he was not given an opportunity to address any allegation that he had assaulted or intimidated members of the public, this complaint is based on a contention that an adverse finding to that effect was made against him in terminating his employment.
67 In his written closing address, the applicant also claims that he was denied procedural fairness or natural justice because the first respondent’s decision to terminate his employment was based on evidence that was not reasonably capable of sustaining such a decision and he cites Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 65 (Pochi) in support. In particular, he complains that the first respondent did not have before her accurate or complete evidence or the totality of the evidence (including the tapes or transcripts of all the records of interviews and the CCTV footage).
68 Finally, in the third further amended originating application the applicant raised some additional previously unpleaded matters as also constituting procedural unfairness. He complains that the following three “decisions” were not disclosed to him for comment prior to the termination decision being made, namely:
(a) PRSIU Team Leader Lyddiard’s decision that he was satisfied that there was sufficient information in FA Deller’s report to support his recommendations;
(b) PRSIU Coordinator Coutsolitis’ decision that FA Deller had carried out his investigation fairly and without bias; and
(c) PRSIU Coordinator Coutsolitis’ decision that the investigation report substantially addressed the issues raised in the complaint and that the evidence had been appropriately weighed.
Each of these matters arises from internal quality assurance processes taken within PRSIU in respect of FA Deller’s investigation report.
Failure to follow procedures required by law
69 In support of his claim that the first respondent failed in certain respects to observe procedures that were required by law to be observed in the making of the decision, the applicant argues that there was non-compliance with s 40TQ of the AFP Act as well as with parts of both the Guideline and CO2. The matters relied upon in support of these claims are set out in the applicant’s reply dated 19 November 2013. They are partly duplicated in the matters summarised above, however, some additional matters were also raised.
70 The applicant submits that s 40TQ of the AFP Act applied to the investigation and imposed a statutory requirement to afford procedural fairness. In particular, he draws attention to s 40TQ(2), the terms of which are set out in [28] above.
71 The applicant says that this statutory requirement mandated that he be given an opportunity to provide a response to the analysis and findings in the investigation report but that he was denied such an opportunity because of the following matters.
72 First, he repeats the matters raised above in support of his complaints of procedural unfairness.
73 Secondly, the applicant submits that the version of the investigation report provided to him on or about 22 August 2012 was redacted and did not include appendices A–O. Consequently, he did not have that material when he provided his response dated 15 October 2012 to the investigation report. He complains that appendices A, B, D, and E-L were essential for him to understand the analysis and foundation for the investigator’s conclusions. For example, he draws attention to the fact that he was unaware of the contents of the “Promis Case Summary” (Appendix A), which described in broad terms the events surrounding Adam being taken into custody and consequently he could not comment on its accuracy; his unawareness of what was contained in the antecedent report (Appendix B) also meant that he could not comment on its accuracy; he had only seen the CCTV footage a few times and was expected to rely on his memory of what could be seen or ascertained from the footage (Appendix D); and since he was unaware as to who had been interviewed by PRSIU or the contents of those interviews (Appendices E-L), he was unable to determine whether the evidence given was accurately reflected in the summaries and salient points. He complains further that he was not given an opportunity to comment on the further investigation which took place after he provided his written response to the investigation report, nor was he informed of the further enquiries which were made by FA Deller after he had submitted his written response.
74 Thirdly, he contends that, on its proper construction, clause 15.3 of CO2 required the adjudication of the complaint to be conducted by at least 2 people, if not all the members of the Panel, and not by Mr Whowell alone. Clause 15.3 provides:
The Panel will comprise MPRS and authorised senior executive AFP employees. The Commissioner can also appoint external appointees with appropriate knowledge and experience as a senior executive. To ensure consistent practice, MPRS will be responsible for managing, directing, and quality assuring the panel’s decision making.
75 In support of this contention, the applicant also relies on clause 15 of the Guideline, which provides:
All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation.
76 The applicant also relies on numerous other matters in contending that procedures required by law were not observed. He claims that both the first and second respondents failed to follow “accepted guidelines” of PRSIU investigations because:
(a) he was not provided with an adequate copy of the CCTV footage of the incident;
(b) he was not provided with sufficient information in relation to the investigation report;
(c) the first respondent was not provided with all information and material obtained in the investigation;
(d) the investigator inappropriately commented on the applicant’s response to the Show Cause Notice;
(e) the investigation was conducted in such a way that the outcome was predetermined; and
(f) the investigation and adjudication process did not follow the process set out in cl 15.3 of CO2.
77 Furthermore, in his reply, the applicant complained that procedures required by law had also not been observed because his prior conduct (relating to the four established complaints against him of use of excessive force in May and June 2010) was taken into account in the investigation, adjudication and Show Cause Notice relating to the incident on 26 May 2012.
Improper exercise of power
78 In support of his claim that the decision constituted an improper exercise of the power under s 28 of the AFP Act, the applicant claims that relevant considerations were not taken into account, various irrelevant considerations were taken into account, the power was exercised in bad faith and was unreasonable, as well as complaining of abuse of power. Finally, the applicant complains that the first respondent’s decision was otherwise contrary to law. Each of those matters was particularised with varying degrees of specificity in the third further amended originating application and the reply. I will now briefly outline the applicant’s arguments concerning each of these heads of review.
(a) Failure to take into account relevant considerations
79 In the third further amended originating application and reply, the applicant contends that FA Deller and the adjudicator were bound to take into account the following relevant considerations and failed to do so:
(a) Supt Timson’s expert opinion on use of force;
(b) the totality of the relevant evidence of all the police witnesses to the incident;
(c) the totality of the relevant evidence provided by Supt Timson;
(d) an accurate summary of Supt Timson’s evidence;
(e) an accurately prepared “salient points” of Supt Timson’s evidence;
(f) an accurate investigation report because FA Deller failed accurately to summarise or prepare “salient points” in respect of Supt Timson’s evidence; and
(g) an accurate investigation report because FA Deller failed to prepare accurate summaries and “salient points” for any of the other witnesses who participated in directed interviews.
(b) Taking into account irrelevant considerations
80 The applicant alleges that the following irrelevant considerations were taken into account in the course of the investigation, the adjudication and the making of the termination decision:
(a) the role of Alpha 8;
(b) the applicant’s inability to understand the meaning of the use of move on directions and their treatment by the courts;
(c) the applicant’s failure to support an unknown person and the alcohol targeting team as they worked to investigate the assault allegations;
(d) the applicant’s failure to keep himself sufficiently apprised of key developments, in particular the alleged victim not wishing to make a formal complaint;
(e) the assessment as to the proper use of capsicum spray was an analysis of two competing versions, namely that of the applicant and that of the complainant and the other police present;
(f) the adjudication had regard to the applicant’s prior conduct in considering whether the complaint had been established;
(g) the adjudication made recommendations beyond the scope of its inquiry; and
(h) the alleged impropriety of the first respondent relying upon Mr Whowell’s findings in circumstances where she did make any independent findings as to whether the complaint was established.
(c) Bad faith
81 In support of his claim of bad faith, the applicant says that the first respondent should have disqualified herself from making the termination decision or, alternatively, have been disqualified by the second respondent. He further alleges that the first respondent was not honest about her prior dealings and incidents involving the applicant. He claims that the first respondent must have known of those prior dealings and incidents because she was involved in them, but even if she had forgotten them, they were brought to her attention and she should not have continued as decision-maker. He contends that the first respondent’s “failure to ameliorate or avoid any issue of bias was not consistent with a statutory duty and constituted the kind of recklessness that might be characterised as being not in good faith”, citing Applicant WAFT/2002 v Refugee Review Tribunal (2003) 145 FCR 351. Finally, in his reply, the applicant also relied upon the matters described in [80(f)] as constituting bad faith.
(d) Unreasonableness
82 The applicant claims that the exercise of the power under s 28 of the AFP Act to terminate his employment was so unreasonable that no reasonable person could have so exercised the power. In support of that claim, the applicant raises many matters which he says are to be viewed individually and not collectively, namely:
(a) the adjudication had regard to the applicant’s prior conduct in considering whether the complaint had been established;
(b) the adjudicator made recommendations beyond the scope of his enquiry;
(c) the first respondent’s termination decision was based on acceptance of the adjudication;
(d) the adjudication was improperly based on a finding of the division between two competing views, namely the view of the applicant on the one hand and the view of the complainant and other police present on the other hand in relation to the question whether the applicant used excessive force;
(e) the adjudication was improperly based on a finding that the applicant had used excessive force without regard to all the relevant material;
(f) the adjudication and the investigation failed to take into account the totality of the relevant evidence given by all of the witnesses which was significant to the finding whether the complaint was established or not because proper consideration and preparation of the evidence may have materially affected the adjudicator’s decision and consequently may never have enlivened the jurisdiction of the first respondent under s 28 of the AFP Act or, alternatively, may have resulted in the consideration being given to alternatives to terminating the applicant’s employment;
(g) both the investigator and the adjudicator unreasonably relied upon the CCTV footage when it was inconclusive as to assessing matters relevant to the applicant’s decision making process to use capsicum spray;
(h) the investigator and adjudicator made decisions on findings based on the CCTV footage when a proper review of the CCTV footage is not reasonably capable of sustaining those decisions and findings;
(i) the investigation made a finding based on suspicion or speculation that capsicum spray was deployed when Adam was complying with the move on direction in circumstances where it was an erroneous finding of fact that Adam was complying with the move on direction and that finding was unsupported by the evidence provided by witnesses to the incident; and
(j) in his reply, the applicant raised as an additional and separate aspect of unreasonableness the matter described in [81(f))] above.
83 In support of his claims of unreasonableness, the applicant submits that “a more generous approach to the test for reasonableness has recently been adopted” which is not limited to asking whether a decision is one which is “so unreasonable that no reasonable person could have arrived at it”, citing Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (Li). He submits that both the finding that he used excessive force and the decision to terminate his employment were both unreasonable in the sense that they involve states of satisfaction which could not be reached by a person with an understanding of the nature of the statutory function being performed. He adds that for the unreasonableness ground to be established, the Court need not be sure of the precise particular in which the first respondent had gone wrong and that it is sufficient that a failure properly to discharge her function can be seen in some way, citing Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353.
(e) Abuse of power
84 In support of his separate claim that the power in s 28 of the AFP Act had been exercised in abuse of power, the applicant repeated many of the matters relied upon by him in his claims concerning relevant and irrelevant considerations, as well as bad faith.
(f) Otherwise contrary to law
85 The applicant’s invitation for the Court to engage in an impermissible review of the merits of the termination decision is perhaps most tellingly revealed in the particulars provided in support of this further pleaded head of judicial review which I will now set out verbatim:
(a) The Decision made an improper finding of serious misconduct.(sic)
(b) The Investigation and Adjudication were not properly conducted;
(c) The information before the Investigation and Adjudication was insufficient to make a finding of serious misconduct;
(d) The First Respondent did not independently consider whether the material available to the Investigation and Adjudication support of the finding of serious misconduct;(sic)
(g) Conduct
86 Finally, under s 6(1) of the ADJR Act the applicant repeats many of the matters raised above in challenging the lawfulness of various conduct leading up to the making of the first respondent’s termination decision. In particular, reliance was placed on the previous claims of procedural unfairness, failure to observe procedures required by law, improper exercise of power and that the decision was otherwise contrary to law.
Outline of respondents’ argument
87 The respondents resist the applicant’s case on the following broad grounds.
88 First, as to the complaint of apprehended bias, the respondent says that any claim of bias has been waived because the applicant ought to have raised his objections to the first respondent determining the matter and he failed to do so (citing inter alia Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [126] (Jones v ACCC)). Secondly, if the claim of apprehended bias is considered, the respondents submit that the material relied upon by the applicant falls short of “firmly establishing” that the relevant “might-might” test is satisfied (citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554 (The Angliss Group) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72] (Jia)). They say further that the applicant has failed to articulate a logical connection between the minor events he relies upon in 2004, 2005 and 2006 and any well-founded fear that the first respondent might not determine the matter on its merits in 2013.
89 As to the applicant’s reliance on alleged apprehended bias arising from the conduct of FA Deller which is then said to taint the first respondent, the respondents submit that the matters relied upon by the applicant as underpinning his allegation of apprehended bias are insufficient to lead a fair-minded lay person, properly informed, to believe that FA Deller may not have been impartial. Furthermore, the respondents submit that even if apprehended bias could be made out on the part of FA Deller, it would not taint the termination decision because there was an intermediate step between completion of the investigation report and the making of the termination decision. That intermediate step involved the adjudication conducted by Mr Whowell and no allegation of apprehended bias is made by the applicant against him. Accordingly, the respondents contend that the adjudication constituted an independent review of whether the complaint was established and operated as a “circuit breaker” in terms of any implications flowing from the case of apprehended bias against FA Deller.
90 As to the applicant’s various complaints that he was not given a fair hearing, the respondents emphasise at the outset that the content of procedural fairness requirements vary depending upon the circumstances and that it is also relevant to ascertain whether any practical injustice has occurred (citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 (Mobil Oil) at 504 and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ (Lam). The respondents also say that, having regard to the relevant surrounding circumstances, the content of procedural fairness did not require the applicant be provided with verbatim copies of material which was taken into account and that it was sufficient to disclose the substance of the matter (citing Walton v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 342 at 357 (Walton)) and that there was no obligation to disclose the identity of the source of that information (citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (Applicant VEAL)).
91 As to the factual foundation for the claim that there was an insufficient disclosure of information, the respondents contend that the “dot point” summaries in the investigation report disclosed the substance of relevant evidence given by the witnesses interviewed and that there were no factual circumstances recorded in the transcripts of those interviews which the applicant did not already know. During the course of closing addresses, the respondents handed up a detailed aide-memoir which noted alongside each of the extracts from the interviews set out in Appendices A–H of the third further amended originating application references in the “dot point” summaries which they say disclose all information which was adverse to the applicant and was “credible, relevant and significant” to the central issue whether the complaint was established. Accordingly, they submit that there was no denial of procedural fairness in not providing the applicant with the verbatim extracts from the interview transcripts the subject of his complaint.
92 As to the non-disclosure of Appendices A-O, the respondents contend that there was no practical injustice because the applicant was aware of the substance of those appendices and, in most cases, was aware of their entire contents. As to the specific complaints regarding non-disclosure of all of Supt Timson’s interview, the respondents say that Supt Timson’s views were fairly reflected in [4.37] of the investigation report and that, in any event, his evidence added nothing to what the applicant already knew about the requirements of clause 6.1 of CO3.
93 The respondents say that it is a misconstruction of the termination letter to view it as turning on a finding that the applicant had assaulted and intimidated a member of the public. Rather, they draw attention to the fact that the description in the termination letter of what was established was in identical terms to the complaint.
94 All other aspects of the applicant’s complaints of unlawfulness are also denied by the respondents. The complaints relate to the allegations of failing to observe procedures required by law and the various heads of review raised by the applicant under the rubrics of improper exercise of power, abuse of power and that the decision is otherwise contrary to law. The respondents also reject the applicant’s complaints that there was non-compliance with the Guideline and CO2 and that there was reviewable error because FA Deller’s investigation report was subjected to internal quality assurance reviews. To avoid duplication, I will not set out the respondents’ detailed arguments on these matters but will deal with them below.
95 The respondents also deny that there is any proper foundation for the applicant’s complaint which relates to the first respondent’s conduct in 2004, 2005 and 2006 on the basis that none of that conduct can be viewed as conduct for the purpose of deciding to terminate the applicant’s employment and, therefore, falls the outside the scope of s 6 of the ADJR Act.
Consideration
96 It is convenient to deal seriatim with the applicant’s multiple challenges to the validity of the termination decision by reference to the various heads of review raised in the third further amended originating application and reply. Although there was substantial agreement between the parties as to the relevant legal principles applying to those heads of review, it is convenient to outline those principles before considering their application to the particular circumstances here.
(a) Denial of procedural fairness
(i) Apprehended bias
97 The test for apprehended bias in the context of administrative decision-making in Australia is now well-established. That test is reflected in the following passage from the leading decision in Ebner v Official Trustee (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ (Ebner) (omitting citations):
…the governing principle is that, subject to qualifications relating to waiver…or necessity…, a [decision-maker] is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide.
98 Other relevant principles established by Ebner may be summarised as follows:
(a) if the decision-maker has determined the matter, the test is one which requires no conclusion about what factors actually influenced the outcome and there is no need to enquire into the actual thought processes of the decision-maker;
(b) application of the apprehension of bias principle involves the following two steps. First, the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. The second step is the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
99 It is also now generally accepted that a reasonable apprehension of bias should be firmly established and not lightly concluded: see The Angliss Group at 553-554 and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100. Furthermore, the application of the apprehension of bias principle needs to take into account such matters as the role and functions of the person against whom the allegation is directed, as well as the nature of the power being exercised. Although the apprehended bias rule is expressed in similar terms in cases involving courts or quasi-judicial tribunals, as well as administrative decision-makers, it is well recognised that the application of the relevant principles may require appropriate adaptation in the circumstances of administrative decision-makers exercising statutory powers (see Ebner at [4] and Jia at [61]-[63] and [99] per Gleeson CJ and Gummow J).
100 It is also settled that the apprehended bias rule can be waived by a party who has adequate knowledge of the key facts but fails to raise an objection of apprehended bias in a timely fashion (see, for example, Smits v Roach (2006) 227 CLR 423 at [45] and Jones v ACCC at [126]). Waiver generally requires that the party be ‘fully aware” or have “full knowledge” of the relevant facts (see the discussion in Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) at [9.360]). I also respectfully agree with the comments of Basten JA (with whom Beazley and Hodgson JJA agreed) in Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [125] (Greyhound Racing) that “care must be taken in circumstances which involve no formal process not to infer informed waiver too readily”.
101 Applying those principles to the particular circumstances here, I make the following findings. I reject the respondents’ defence based on waiver. In my view, the applicant took reasonable and appropriate steps in raising his concerns of apprehended bias with the then Chief Police Officer of the ACT who then undertook to raise those concerns with the first respondent. Having regard to the hierarchical structure of the police force and the administrative character of the internal investigation, no objection can be taken to this course, as opposed to the applicant raising his concerns directly with the first respondent. The applicant’s conduct does not preclude him from further objecting in these proceedings to the first respondent’s involvement in the decision-making, but for the following reasons I do not accept that the applicant has established any of his claims of apprehended bias.
102 First, I do not consider that the Ebner test is satisfied by any of the three prior incidents relied on by the applicant. In particular a fair-minded lay person is not likely to view any of those incidents, whether viewed individually or collectively, as providing a basis for believing that the first respondent might not bring an impartial mind in determining whether or not to terminate the applicant’s employment. The incidents occurred more than seven years prior to the termination decision and, having regard to the applicant’s own description of the incidents, none is of a sufficiently serious magnitude as to give rise to a reasonable apprehension on the part of the hypothetical lay observer that the first respondent might not bring an impartial mind to the matter for determination. The incidents were relatively minor and inconsequential. The applicant failed to identify any logical connection between the events which occurred in 2004, 2005 and 2006 and any concern on the part of the hypothetical observer as to why the first respondent might not bring an impartial mind in determining whether or not to terminate the applicant’s employment by reference to his conduct which occurred well after that time.
103 The position is not affected by the fact that the first respondent declined to disqualify herself notwithstanding that the applicant’s concerns were conveyed to her by Mr Quaedvlieg. If, viewed objectively and through the eyes of the hypothetical observer, the matters are insufficient to create apprehended bias, the decision-maker’s conduct in rejecting them as providing a basis for disqualification cannot itself form a further basis for disqualification.
104 Secondly, I do not consider that the hypothetical lay observer would entertain a reasonable apprehension of bias on the part of the first respondent arising from the multiple aspects of FA Deller’s conduct which were relied upon by the applicant in support of his claim. It was confirmed in oral address that those multiple matters were relied on collectively and not individually. It is convenient, however, to deal with those multiple matters in broad groups.
105 As to the claims relating to various comments made by FA Deller during the taped record of interview with the applicant, I consider that the hypothetical observer would not view those comments as suggesting predetermination, but rather as inviting the applicant to further respond to what FA Deller personally observed in the CCTV footage, as his observations and interpretation of events differed from the applicant’s.
106 Nor do I consider that the hypothetical observer might draw an adverse inference concerning apprehended bias because FA Deller declined to inform the applicant during the course of his interview of what other witnesses had said about the incident. The applicant was later provided with, and invited to comment on, a copy of the investigation report which summarised that evidence, albeit with some redactions (which, for reasons given below, were not in my view inappropriately made). Similarly, I do not consider that FA Deller’s failure to disclose that Adam was not a complainant and had declined to be interviewed to be matters from which the hypothetical observer might draw an adverse inference concerning his impartiality.
107 As to that part of the apprehended bias case which was based on claims that FA Deller had inaccurately summarised the evidence given by other witnesses, that case must fail because, as a matter of fact, the summaries were not materially inaccurate and did not produce any practical injustice for the applicant (see further below). The same applies to that part of the case which is based on claims that the evidence given by various witnesses in their directed interviews was not accurately reflected in the “salient points” section of the annexures to the investigation report.
108 Turning to other parts of the applicant’s apprehended bias case, I consider that it was not improper for FA Deller to make additional inquiries of particular police officers concerning disputed factual matters, particularly in circumstances where the substance of those enquiries was disclosed in the investigation report and the applicant was provided with a copy of the report for comment. As to inquiries made by FA Deller after completion of his investigation report and receipt of the applicant’s natural justice response, the outcomes of which were passed onto Mr Whowell for the purpose of his adjudication and not disclosed to the applicant, it is difficult to see how such conduct could give rise to apprehended bias on the part of FA Deller. Rather, the hypothetical observer is likely to view such conduct as not inappropriate or suggestive of a lack of partiality in the context of a multi-stage decision-making process, but rather as reflecting a desire to ensure that all matters raised by the applicant were fully investigated and taken into account by the relevant decision-makers. The same is the case concerning the complaint that FA Deller failed to disclose that the salient points section of the investigation report was expanded after receipt of the applicant’s natural justice response.
109 In addition, the hypothetical observer is not likely to view as improper or untoward FA Deller’s comments on the role of Alpha 8 or what he saw on the CCTV footage, in circumstances where the applicant was afforded a full opportunity to make whatever comments he wished on those topics. Nor would the hypothetical observer be likely to apprehend possible bias on FA Deller’s part merely because a third party (Sgt Whittaker) told the applicant that he was lucky “to get off” the previous complaints. I accept the respondents’ submissions that there is nothing to suggest that those remarks affected, or might likely have affected, FA Deller’s investigation or its conduct and, in those circumstances, the comments provide no adequate foundation for the complaint of apprehended bias.
110 For these reasons, therefore, I consider that there is no adequate factual foundation for the applicant’s complaint of apprehended bias. In any event, I also consider that there is force in the respondents’ further contention that, even if there was a case of apprehended bias in relation to FA Deller, that would not taint Mr Whowell in circumstances where he gave unchallenged evidence that he turned his own mind to the materials before him, including the investigation report and the additional materials which included the CCTV footage and the taped record of interviews of both the complainant and the applicant. As the respondents point out, the applicant made no challenge to Mr Whowell’s evidence that he considered the content and substance of all the documents which were before him in determining that the complaint of use of excessive force was established. That evidence should be attributed to the hypothetical observer, as also should the fact that the first respondent had before her not only Mr Whowell’s independent findings, but also additional material in support of her termination decision, including the prior established complaints of excessive use of force by the applicant and the formal written warning issued to him on 28 November 2011. The combined effect of these considerations is to break the chain of causation which might otherwise have existed between an established allegation of apprehended bias against FA Deller and the ultimate decision of the first respondent to terminate the applicant’s employment.
(ii) Unfair hearing
111 There was no contest that the principles of procedural fairness or natural justice applied in the circumstances of this case. That is presumably because any doubt on that issue was removed by the express requirement in s 40TQ(2) of the AFP Act that an investigator ensure that an AFP appointee who is subjected to an investigation must be given an adequate opportunity to be heard (see [28] above).
112 A central issue in the proceedings is the content of procedural fairness requirements. It is indisputable that there are no universal rules governing the content of the requirements of natural justice or procedural fairness and the content of those requirements can vary according to the particular statutory framework another relevant circumstances. That basal principle is reflected in the well-known following passage from Kitto J’s judgement in Mobil Oil at [13] on 504 (citations omitted):
…By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter…As Tucker LJ said in Russell v Duke of Norfolk…, in a passage approved by the Privy Council in University of Ceylon v Fernando…, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”…What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances….
113 In determining the required content of procedural fairness in the circumstances of this case, close consideration must be given to such matters as the nature of the functions and powers created by the AFP Act and the subject matter being dealt with (including the multi-stage decision-making authorised by the legislation), as well as the significance of the exercise of those powers to the applicant’s particular interests, noting especially that the ultimate outcome was the termination of his employment. In this context, it is also important to identify whether a decision or action which it is alleged was affected by procedural unfairness involved an operative decision or action which adversely affected the legal rights or interests of the applicant (see Greyhound Racing at [79]). Moreover, merely because a particular decision or action may have had an adverse effect in a practical sense, does not mean that it adversely affected his rights or interests in a legal sense. This consideration is particularly relevant in the context of a legislative framework such as that here, which envisages that there may be various stages of decision-making, ranging from a process which might be described as inquisitorial, through a subsequent stage of adjudication and leading up to an ultimate stage in the determination of an appropriate sanction.
114 Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission (see, for example, Kioa v West (1985) 159 CLR 550 at 628-629 (Kioa v West); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592 (Alphaone); SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 (SZBEL) and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party (see, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (South Sydney City Council)). Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.
115 In some circumstances, procedural fairness may also require the decision-maker to disclose to the affected person information provided to the decision-maker by a third party which is relevant to the matters in issue even though the decision-maker says that the information was not taken into account in reaching an adverse decision (see in particular Applicant VEAL). As Brennan J commented in Kioa v West at 629:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
116 A notable feature of the applicant’s case here is that he complains of multiple instances where he says he was not provided with information provided to FA Deller by various witnesses in their directed interviews. The applicant says this information was not adverse to his interests but rather ought to have been disclosed to him because he could have relied upon it as corroborating his defence to the allegation that he used excessive force and engaged in category 3 conduct. In other words, far from being directly adverse to his rights and interests the non-disclosure of the relevant information is said to have prejudiced his rights and interests because the particular information was favourable to his position and he was unable to take it into account in formulating his natural justice response. Although the authorities generally refer to the significance of adverse material not being disclosed, the failure to disclose exculpatory material may in appropriate circumstances constitute procedural unfairness (see, for example, Shields v Overland (2009) 26 VR 303 at [109] per Kyrou J where emphasis was placed on the situation where a decision-maker has exclusive knowledge of specific information).
117 In my view, these principles need to be balanced with the well-established rule that there is no obligation to disclose the decision-maker’s deliberative processes or proposed conclusions (see Alphaone at 590-591 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J). As the High Court explained in SZBEL at 162, procedural fairness ordinarily requires “the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material” (citing Alphaone at 32, emphasis omitted).
118 Further, in my opinion, the general requirement that adverse material which is credible, relevant and significant to the decision to be made does not mean that a decision-maker must always disclose verbatim copies of material to be considered. In some circumstances, it is sufficient if the affected person is informed of the gravamen or substance of the issue. The point is illustrated by Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539. In that case, Merkel J rejected an argument that the Minister had denied the Pilbara Land Council of procedural fairness in not providing the Council an opportunity to deal with adverse observations made by an assessment team in a report to the Minister prior to the Minister deciding not to recognise the Council as the representative body for the purposes of native title legislation. At [70], Merkel J stated the general principle as follows (omitting case references):
While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision-maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it…It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”….
119 In Pilbara, Merkel J held that there was no obligation to disclose the internal assessment team report because it did not raise any new matters or provide any obviously unnatural responses to, or evaluations of, matters that had previously been raised with the Land Council. Justice Merkel applied the same principle in Walton at 357, where his Honour also added at [70] that, in the particular circumstances, there was no procedural unfairness in not disclosing to the affected person information “which was not material or adverse to his interests”.
120 It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Emphasis added).
121 This principle has been applied subsequently in many cases, including Greyhound Racing and WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at 525. That is not to say, however, that where there has been non-disclosure of relevant information, the Court should enquire into the question whether or not such non-disclosure had a material effect on the outcome. As Emmett J observed in Ozepulse Pty Ltd v Minister for Agriculture Fisheries and Forestry (2007) 163 FCR 562 at [577] (case references omitted):
If the rules of procedural fairness require disclosure of information to a person affected by a decision, it will be immaterial that the person might not have successfully negated the significance of the information so disclosed or persuaded the decision maker to make the favourable decision. It will be sufficient that the denial of natural justice deprived the person affected of the possibility of a successful outcome. That is to say, it is not a question of whether a court engaged in judicial review would have been persuaded by the response of the person affected: the question is whether the decision maker might possibly have been persuaded by the response of the person affected.
122 One of the applicant’s primary complaints is that he was not provided with full copies of the recorded interviews conducted by FA Deller with various witnesses who participated in directed interviews. As noted above, he complains that the “dot-point” summaries set out in the body of the investigation report were either inaccurate or did not fully summarise the relevant evidence such that the provision to him of those summaries fell short of what was required by procedural fairness. In effect, the applicant argues that procedural fairness can only be afforded to him if he was provided with access to full copies of all the directed interviews, whether in the form of video recordings of those interviews or, at the very least, full written transcripts of those interviews. Alternatively, he argues that if it is accepted as a matter of general principle that dot-point summaries of those interviews were sufficient, it was essential that the summaries be accurate and he contends that this was not the case here. The applicant annexed to the third further amended originating application 8 appendices, each of which sets out multiple instances of extracts from the transcripts of various individual directed interviews which the applicant says were not accurately captured in the dot-point summaries in the investigation report to which he had access. Approximately 75 such extracts were relied upon by the applicant in support of this aspect of his complaint of procedural unfairness. Emphasis was also placed on the applicant’s oral evidence as to the prejudice which he says he suffered in preparing his natural justice response without having the benefit of some of those extracts.
123 The respondents deny that the dot-point summaries were materially inaccurate or deficient and they annexed to their closing written submissions a 20 page “aide-memoir” which responded to all the extracts relied upon by the applicant. It contains references to those parts of the investigation report which the respondents contend adequately disclosed the substance or gist of the evidence in the extracts relied upon by the applicant.
124 In my opinion, the applicant’s contentions on this matter should be rejected for the following reasons. First, in my view, procedural fairness did not require that the applicant be provided with full and unredacted of the relevant interviews. I accept the respondents’ submission that considerations of confidentiality justified the decision to redact the names of most of the officers who participated in directed interviews. Although I accept that merely because information is confidential does not determine whether it ought to be disclosed under procedural fairness requirements (see, for example, Applicant VEAL at [22]), the critical question is whether there are good or substantial reasons for preserving confidentiality in the particular case. In my opinion, the redaction of Sgt Walls’ name was sound and appropriate in order to protect the identity of the complainant (see, for example, Ansell v Wells (1982) 63 FLR 127 at 140-141 per Davies J and see generally Maman at [36]-[42]). In my view, it was also appropriate to redact the names of other interviewees who were subordinate police officers to the applicant in order to protect their interests, particularly taking into account their possible future work relationship with the applicant in the hierarchical structure of the police force.
125 In my view no significance attaches to the fact that Constable Carter’s name was disclosed in the investigation report. That disclosure appears to have been inadvertent and casts no light on the question whether procedural fairness required that the names of other witnesses be provided to the applicant. The position may have been different if the applicant complained with justification that he had reasonable grounds to believe that any of those junior officers (or, indeed, the complainant) had a grudge against him and that he was prejudiced by not being able to make submissions on the relevance of any such antipathy. But no such complaint was made.
126 Nor do I consider that procedural fairness required that the applicant be informed that Supt Timson was the expert who was interviewed by FA Deller and whose evidence is summarised in the investigation report. The applicant pointed to no “practical injustice” occasioned to him by not knowing the expert’s identity. In the circumstances of this case, it was sufficient that the applicant was aware that the evidence which was summarised in the investigation report was not evidence given by a lay witness who actually observed the relevant events, but rather by an expert expressing views based on the CCTV footage. I will deal below with the applicant’s separate complaint that he was prejudiced by not being provided with certain extracts of Supt Timson’s interview.
127 Secondly, I do not consider that in the circumstances of this case the applicant was entitled under procedural fairness requirements to be given access to full copies of any of the directed interviews. The applicant was well aware that the investigation related to a complaint that he had used excessive force on the relevant occasion. He was also fully aware that FA Deller intended to take into account not only his version of the events which occurred, but also the CCTV footage (which the applicant viewed on 3 separate occasions) and the evidence and observations of other witnesses. I accept that procedural fairness required that he be provided with accurate summaries of evidence of other witnesses to the extent that that material was relevant, credible and significant to FA Deller’s report. The critical issue is whether the dot-point summaries contained in the investigation report were inaccurate to the extent that the applicant was denied access to information fitting that description.
128 As noted above, the applicant relied upon the Full Court’s decision in Maman in support of his argument that he was entitled to receive the totality of the evidence and without redactions. In my view, while the principles outlined and applied in that case are well-established and are equally applicable here at a level of general principle, both the relevant statutory and factual circumstances there were quite different. That case involved an appeal from a decision of a Federal Magistrate holding that the Migration Review Tribunal had denied procedural fairness to a visa applicant in providing to an independent expert – but not to the visa applicant – a copy of a letter to the Department from the applicant’s former spouse. The letter had been provided to the independent expert in the context of the expert having been asked to provide a report on whether the applicant had been the victim of “domestic violence”. That issue was relevant to one of the criteria applicable to the particular visa sought by the applicant. The letter in question was found by the Full Court to be both relevant and significant. It was described at [45] as “a letter of some detail and length” which described the author’s relationship with the visa applicant. Equally significantly, the Full Court found at [52] that although the applicant had been provided with a summary of “key points” in the letter, those key points did not adequately set out the gist of the letter. The Full Court identified at [56] several important points which were made in the letter but were not disclosed to the visa applicant for comment, with the consequence that disclosure of the “key points” did not satisfy the requirements of procedural fairness. Finally, it might also be observed that the Full Court indicated that even if the gist of the letter had been disclosed to the visa applicant that would have to occur at the relevant time and not belatedly (see at [61]). All these matters highlight significant points of distinction between Maman and the case here.
129 In my opinion, the dot-point summaries in the investigation report were sufficient to discharge the relevant requirements of procedural fairness in the circumstances here. I accept the respondents’ submission that the investigation report (and, in particular, [4.3]-[4.14] thereof) contained an adequate summary of the evidence given by the various witnesses which was relevant, significant and credible and to which the applicant was otherwise entitled to have notice. That submission is supported by the detailed references set out in the respondents’ aide-memoir to which reference was made above. It would be tedious to set out all the relevant references in that 20-page document in the body of this judgment. I am satisfied that those references provide a full answer to the applicant’s complaint that the dot-point summaries were inaccurate or otherwise deficient in satisfying procedural fairness requirements. In the instances where there is no reference in any part of the investigation report which discloses the gist or substance of a particular extract of an interview specified and relied upon by the applicant, I accept the respondents’ submission that such extracts do not raise matters which were relevant, credible or significant to the central issue, namely whether the complaint was established. For completeness, a copy of that aide-memoir is attached as a Schedule to these reasons for judgment.
130 It is sufficient to focus on the particular extracts set out in the appendices to the third further amended originating application which were emphasised by the applicant’s senior counsel in closing address.
(A) Summary of Sgt Walls’ interview
131 In the case of Sgt Walls’ evidence, the applicant complained that he should have been told that Sgt Walls had said in response to question 78 of his interview that: “I mean I guess his demeanour was - became threatening at that stage”. But the gist or substance of that evidence was adequately reflected in the following dot point on page 7 of the investigation report (which follows a reference to Sgt Walls’ evidence that he heard the applicant say to Adam “Back up against the wall ya maggot” – a statement denied by the applicant):
• The male person became more aggressive and had not engaged with Sgt COUTTS prior to that time to warrant such comments or action.
132 The applicant further complains that he was not provided with Sgt Walls’ response to question 151 in which he was asked whether Adam had exhibited any behaviour that would give rise to the apprehension of violence and Sgt Walls said:
No – yeah, I guess it was a - a moderate amount, I guess. I’d have said he was intoxicated and you know he had blood on him and he was like a lot of drunk people are. Everyone that’s drunk is difficult and belligerent and he was - and he was a big guy too, he was - obviously a body builder.
133 But the gist or substance of that evidence was adequately reflected in the last dot-point on page 6 of the investigation report in which it was recorded that:
• The male person was intoxicated, agitated, slightly uncooperative like an intoxicated person is, moderately to well affected by alcohol, was belligerent - may give cause for concern of violence;
134 Moreover, although there is no reference in that summary to Sgt Walls’ description of Adam as being “a big guy” that fact was not disputed and indeed was mentioned by various other witnesses and accepted by FA Deller. The applicant cannot reasonably complain that he suffered some practical injustice by the omission of any reference to it in the summary of Sgt Walls’ evidence.
(B) Summary of Constable Lawrence’s interview
135 As to the complaints regarding non-disclosure of extracts from Constable Lawrence’s taped interview, I accept that the references in the aide-memoir provided by the respondents demonstrate that the applicant was on notice as to the gist or substance of that evidence. For example, the applicant complains of the non-disclosure of various statements made by Constable Lawrence concerning his assessment of the effect of Adam’s level of intoxication on his capacity to understand a move on direction, but the following summary is provided on page 8 of the investigation report of that evidence:
• In his own opinion [Adam] would not have understood the move-on direction but an alternative for his care would have been for him to leave with his mate in a taxi”
as well as the immediately following reference to Adam being “argumentative but intoxicated”.
136 Complaint is also made of the non-disclosure of Constable Lawrence’s statement that “I did think if he went off there was going to be dramas…because he was a pretty big guy”, but the following adequate summary of that evidence is provided on page 8 of the investigation report (noting also what is said above concerning the reference to Adam being “a big guy”):
• [Adam] was argumentative but intoxicated. He was not aggressive but he did think if he “went off” there would be dramas;…
137 Complaint is also made about the omission to disclose the following additional statement by Constable Lawrence in his directed interview:
…just the way he was standing; he kept shrugging his shoulders - he just looked like he might’ve – he - either been inside and had a fight or he’s working himself up to have a fight. I couldn’t work out what.
138 But that statement is adequately encapsulated by the following summary set out at the bottom of page 8 of the investigation report:
• At the time he didn’t think [Adam] had done anything to indicate he would be violent but his body language with him shrugging his shoulders may have indicated he was trying to “work himself up”.
(C) Summary of Constable Raue’s interview
139 The same is the case with the relevant extracts from Constable Raue’s evidence, however, it is appropriate to say something further about one aspect of his evidence which the applicant says was not disclosed to him in the investigation report and which he says caused him prejudice. That evidence relates to the actual terms of the move on direction given to Adam by that officer. In his directed interview Constable Raue was asked about the actual terms of the move on direction and he responded by saying:
Yep. It says, “I have reasonable grounds to believe that you have engaged or likely to engage in violent conduct. I am now giving you a direction to leave this area. You have” and there is a blank space “minutes to comply with this direction.”
140 The applicant contends that he was prejudiced because he did not hear the precise words used by Constable Raue and they were not disclosed in investigation report. He says that if he had known about the precise words he would have drawn attention to them because they were uttered shortly before the relevant incident occurred and they corroborated the applicant’s own assessment at that particular time that Adam was potentially violent. As I made clear in the course of the respondents’ oral address I was initially troubled by this contention because it seemed to me that the burden of the complaint may not have been adequately addressed by the material which was disclosed on page 9 of the investigation report relating to that direction.
141 At the conclusion of oral address the respondents sought and were granted leave to file a short supplementary submission on the issue (to which the applicant responded).
142 In my view, there is no substance in the applicant’s complaint on this issue having regard to the following matters which indicate that he suffered no practical injustice or prejudice:
• he knew that Constable Raue had given Adam a move on direction and he saw him do so;
• although he did not hear the precise words spoken by Constable Raue to Adam, he plainly inferred that the pro forma words had been used because the applicant said in his own interview that “Constable Raue has gone away for a short period and he has come back and he has obviously said “Listen, here is your move-on direction,” and obviously went through the spiel with him.” (Emphasis added). The reference to the “spiel” is plainly a reference to the terms of s 4 of the Crime Prevention Powers Act 1998 (ACT), which empowered an officer to give a move on direction “if there are reasonable grounds for a police officer to believe that a person in a public place has engaged, or is likely to engage, in violent conduct in that place”;
• it may be inferred that the applicant was familiar with the “spiel” or pro forma words, because he said in his show cause response that he did not misunderstand any relevant legislation as it applied to his duties, that he had been a Beat Team Sgt for 14 months and “move on directions were our “bread-and-butter” and that he had “issued more move on directions than most”.
• the applicant was aware from reading the investigation report that several other officers who had participated in directed interviews had stated in varying ways their concern that Adam could become violent; and
• in any event, FA Deller accepted that both the applicant and other police officers were concerned that Adam could become violent, as is reflected in [6.1] of the investigation report, where in expressing his conclusions, FA Deller wrote:
“Statements made by attending police and security of “The Cabinet” indicate that [Adam] was under the influence of an intoxicating substance and he was in an aggressive manner”.
143 For these reasons, I reject the applicant’s contention and evidence that he was prejudiced by the non-disclosure of this aspect of Constable Raue’s interview.
(D) Summary of Constable Nallo’s interview
144 Nor do I consider that the applicant was denied procedural fairness because he was not told about various aspects of Constable Nallo’s interview. I accept the respondents’ submission that the substance or gist of each of the eight extracts relied upon by the applicant is adequately disclosed in the investigation report. It is appropriate, however, to say something further in respect of two of the extracts emphasised by the applicant:
• as to Constable Nallo’s evidence that Adam “was quite clearly under the influence of intoxicating liquor and/or drugs” (emphasis added), the substance of that evidence is disclosed on page 10 of the investigation report where there is a reference to the male being “intoxicated and had no idea of what was going on”. Further, although there is no reference there to the influence of drugs, the applicant himself said that he believed that Adam was intoxicated by either alcohol or drugs and that evidence was not rejected by FA Deller. Indeed, as noted in his conclusion in [6.1] of the investigation report (as set out in [142] above), express reference is made to Adam being “under the influence of an intoxicating substance”. Accordingly, there was no practical injustice to the applicant in omitting any express reference to this aspect of Constable Nallo’s interview. The availability of corroborative evidence could be material if it supported the applicant’s version of events on a relevant matter which version was rejected by FA Deller, but that is not the case here on this issue.
• as to Constable Nallo’s evidence concerning the methods which Sgt Coutts could have used to take Adam into custody, the substance of the constable’s opinion is disclosed on page 11 of the investigation report, where it was stated:
Personally, he would have tried to de-escalate.
(E) Summary of Constable Carter’s interview
145 The applicant also complained of procedural unfairness in not being informed of approximately 30 extracts from Constable Carter’s interview. I accept the respondents’ submission that the investigation report did disclose the substance or gist of each of those extracts. The applicant claims that he was disadvantaged in respect of some of those extracts by not knowing that another police officer present had made statements corroborating his view of what had occurred, including that Adam was belligerent, drunk and “eyeballing” him. In my view, not only are those matters adequately summarised in the relevant portion of the investigation report, but the applicant suffered no practical injustice or disadvantage in not having access to corroborative evidence relating to facts or matters which were ultimately accepted by FA Deller.
(F) Summary of interviews of Constable’s Clarke and Callaghan
146 I have reached the same conclusion in respect of the extracts raised by the applicant regarding the interviews of Constables Clarke and Callaghan. I accept the respondents’ submissions that the references provided by them in the aide-memoir indicate that the substance or gist of that evidence was adequately disclosed in the investigation report.
(G) Summary of Superintendent Timson’s interview
147 The same findings apply to the applicant’s complaint regarding the adequacy of the summary of Supt Timson’s evidence. That summary is set out in [4.37] of the investigation report. As the respondents’ submitted, that paragraph fairly reflected Supt Timson’s opinion as stated during his interview that the CCTV footage was not by itself sufficient to establish the complaint and it was necessary to consider other evidence in order to determine whether the applicant had a justifiable belief that the use of capsicum spray was warranted and that he could not defend himself against Adam using less forceful methods. The burden of the applicant’s complaint seemed to be that that summary contains no reference to Supt Timson’s evidence that whether or not there had been a breach of CO3 depended on the applicant’s assessment of the situation at the relevant time and whether he had adequately explained his conduct. That evidence adds little or anything of significance to the actual terms of the relevant instruments (particularly cl 6.1(1)(a) of CO3) relating to the use of chemical agents and the use of force generally. The relevant instruments were publicly available and must have been known to the applicant as a police officer with the AFP. Accordingly, no practical injustice can be identified.
148 The above reasoning as to why the applicant was not denied procedural fairness being provided with a copy of the investigation report and not full transcripts of the directed interviews complained of applies equally to the applicant’s complaint that he was also denied procedural fairness because Mr Whowell was not provided with full transcripts of all the directed interviews, and only had access to those relating to the complainant and the applicant.
149 As is evident from the findings above, in my view, the investigation report contained adequate summaries of the relevant interviews. Procedural fairness did not require that Mr Whowell read for himself the entirety of all the directed interviews. It was sufficient that he relied upon what I regard to be adequate summaries set out in the investigation report which conveyed the gist or substance of the interviews, together with his personal review of the CCTV footage and the taped interviews of both the complainant and the applicant. The relevant legislative framework permitted a process of multi-stage decision-making of the kind which was conducted here and which is described in [3]-[18] above. That process essentially involved an initial fact finding investigation carried out by FA Deller (which produced a recommendation that a finding be made that the applicant had engaged in category 3 conduct of the kind particularised in the complaint), a subsequent adjudication carried out by Mr Whowell (which took into account various matters, including the applicant’s detailed response to the investigation report) which led to a decision to accept FA Deller’s recommendation that it be found that the complaint was established, and ultimately a decision by the first respondent on the appropriate sanction to impose (on procedural fairness and multi-stage decision making, see generally South Australia v O’Shea (1987) 163 CLR 378; South Sydney City Council and Greyhound Racing).
150 Nor in my view was it procedurally unfair for Mr Whowell to take into account not only the contents of the investigation report but also the internal quality assurance reviews conducted by Messrs Lyddiard and Coutsolitis without informing the applicant of the fact that those internal quality assurance reviews had occurred or providing him with an opportunity to respond to both the investigation report and those internal quality assurance processes.
151 The quality assurance reviews involved the team leader and coordinator making certain statements in expressing satisfaction that particular matters had been attended to. In the case of Mr Lyddiard’s quality assurance review, this involved him declaring that he had reviewed the investigation and was satisfied that it had been undertaken as required by Part V of the AFP Act, was of a high standard (spelling and grammar checked) and included evidence appropriately weighted and addressed. He further expressed his satisfaction that sufficient information had been obtained to support the recommended findings and that appropriate opportunities for natural justice had been afforded. Finally, he expressed his support for the recommended findings.
152 In the case of Mr Coutsolitis’ further quality assurance review, he declared that he had read the investigation report and the applicant’s natural justice response, as well as other material relevant to considering the sufficiency and quality of the investigation in general and the investigation report specifically. He expressed his satisfaction that the investigation had been undertaken fairly and without bias and in compliance with Part V of the AFP Act, that the investigation report substantially addressed the issues raised in the complaint and that evidence had been appropriately weighed on the civil standard in making the final recommendations and that the findings, conclusion and recommendations made by the investigator were sound, appropriate and supported by him.
153 The contents of the investigation report spoke for themselves and the applicant was given, and took advantage of, the opportunity to respond to the investigation report. The internal quality assurance process added nothing of material significance to that which was revealed by the contents of the investigation report itself, at least insofar as they raised matters that were relevant, credible and significant and which were adverse to his interests. No new adverse matters of relevance, credibility and significance were raised by the internal quality assurance reviews which, in effect, “signed off” on FA Deller’s investigation report. The position might have been different if either or both of the quality assurance reviews had introduced fresh findings or material which were adverse to the applicant’s interests and about which he had no prior notice leading up to Mr Whowell’s decision to confirm and adopt FA Deller’s recommendation that a category 3 conduct violation had been established. But that is not the case here. No practical injustice was occasioned to the applicant in not disclosing to him that FA Deller’s investigation report had been subjected to the relevant processes of internal quality assurance. The applicant took full advantage of the opportunity afforded to him to respond to FA Deller’s report before Mr Whowell determined to adopt its recommendation. It was the contents of the investigation report that were material to the applicant’s interests, not the fact that the contents had been subject to internal quality assurance.
154 I also consider that non-disclosure of appendices A-O to the investigation report did not occasion any procedural unfairness to the applicant. As the respondents submitted, the substance – and in most cases the complete content of every appendix – was known to the applicant. Appendices A, C, M and O were documents either written by the applicant himself or provided by him. Appendix B comprised the applicant’s own antecedents and the formal warning letter provided to him. He could have asked for a copy of his antecedents, but he never did. Furthermore, while the applicant gave evidence in the judicial review proceedings to the effect that there was some duplication in the records of his disciplinary record, I am not satisfied that any such duplication had any relevant bearing on Mr Whowell’s ultimate finding that the particular complaint regarding the incident on 26 May 2012 was established (as the respondents also pointed out, the applicant drew the first respondent’s attention to some of that duplication in his submission dated to April 2013 in response to the Show Cause Notice).
155 As to the applicant’s complaint concerning Appendix D (the CCTV footage), as noted above, that footage was viewed by the applicant on three occasions prior to him forwarding his natural justice response on 15 October 2012.
156 Appendices E-L contain the “salient points” of various directed interviews, but their non-disclosure did not involve procedural fairness in circumstances where the body of the investigation report contained adequate summaries of the relevant evidence when measured against the particular extracts from the actual directed interviews relied on by the applicant. Furthermore, I accept the respondents’ submission that any differences between the salient points and those summaries are inconsequential and involve no procedural unfairness (the respondents annexed to their written outline of closing submissions a two-page table which compared the text of the relevant salient points and the text of the comparable summaries of evidence in the investigation report, which I accept demonstrates that any differences were minor and inconsequential).
157 Nor was there any procedural unfairness in not providing the applicant with a copy of Appendix N (i.e. the AFP guide on the Alpha 8 role (ACT Policing)), as that document was available throughout the AFP and the applicant could have asked for a copy if he wished. Apparently he never did, notwithstanding that he was performing that role on the night of the incident.
158 Finally, for completeness, it should be noted that the applicant was provided with a copy of Appendix P (a screen shot of CCTV footage showing the applicant deploying capsicum spray).
159 As to the applicant’s complaint of procedural unfairness relating to FA Deller’s additional inquiries of three police officers and, in particular, to the information he then provided to Mr Whowell but not to the applicant, I do not consider that this conduct caused the applicant any prejudice or practical injustice. As noted above (at [108]) in the context of a related complaint that this conduct gave rise to apprehended bias, I do not consider that there was any procedural irregularity in what occurred taking into account in particular the multi-stage decision-making authorised by the relevant legislative scheme. Furthermore, as the respondents pointed out, the applicant was provided with a copy of FA Deller’s response to the applicant’s detailed written submission dated 15 October 2012 under cover of the Show Cause Notice and he was invited to provide to the first respondent any additional response or material he wished, an opportunity which was taken up by the applicant at that stage of the process. There was no procedural unfairness.
160 Nor do I accept the applicant’s procedural unfairness claims arising from the terms of Assistant Commissioner Close’s termination letter and, in particular, the reference therein to the applicant having assaulted and intimidated members of the public. The relevant part of the letter, which appeared immediately under the heading “Decision”, was as follows:
After reviewing all the available evidence, I have formed the view that you have failed to comply with the professional standards of the AFP, specifically, your actions amount to serious misconduct given your assault and intimidation to members of the public, contrary to section 8.10 of the AFP Code of Conduct, as contained in the Commissioner’s Order on Professional Standards (Commissioner’s Order 2) (sic).
I consider your failure to comply with the requirements of the AFP Code of Conduct constitutes misconduct of gravity which warrants termination of your employment with the AFP. I set out the reasons for my decision below. (Emphasis added).
161 Under the heading “Reasons”, the first respondent then explained the basis for her decision. After referring to the adjudication and Show Cause Notice, express reference was made to the finding that the applicant had used excessive force on a member of the public contrary to CO3. That is a plain reference to the finding by Mr Whowell that the complaint relating to the incident on 26 May 2012 was established. Any doubt on that score is removed by the subsequent reference in the letter to the adjudicator’s finding that the complaint relating to that incident was established. To reinforce that point, the letter than contained the following statement:
My decision to terminate your employment with the AFP is based on the evidence before me, which shows that you did use excessive force on [Adam] when you sprayed him with oleoresin capsicum spray and took him into custody.
162 When viewed in this context, the reference in the letter to “your assault and intimidation to (sic) members of the public” is a clear reference to the applicant’s history of conduct involving the use of excessive force in circumstances similar to the incident on 26 May 2012. Construed in context, I do not consider that the letter recorded any independent finding that the applicant had assaulted and intimidated [Adam] and that such a finding provided either the entire or part of the basis for the first respondent’s decision to terminate his employment. Rather, the catalyst for that decision is recorded in that part of the letter which stated: “Finding ESTABLISHED”, which follows immediately after a description of the precise terms of the complaint relating to that incident, which involved an allegation of using excessive force on Adam contrary to CO3.
163 There is no doubt that, as might be expected, the decision to terminate the applicant’s employment also took into account his antecedents, not the least because of the formal warning he received in November 2011. The final sentence of the first respondent’s termination letter makes express reference to the determination of sanction and it is recorded there that the first respondent had “regrettably decided that the breaches are sufficiently serious to warrant termination of your employment, effective from 15 July 2013” (emphasis added). Similarly, earlier in the letter, the first respondent expressed her concerns “about the seriousness of [the applicant’s] behaviour and the repetitive nature of complaints made against you” (emphasis added). There was no error in taking the applicant’s disciplinary history into account in determining the appropriate sanction stemming from the finding that the applicant had used excessive force on 26 May 2012.
164 As a separate aspect of his procedural unfairness case, the applicant says that the termination decision was based on evidence that was not reasonably capable of sustaining it and cited in support of that proposition the decision in Pochi. In his final further written submissions which were filed shortly before closing addresses commenced, the applicant explained this allegation by reference to the fact that the first respondent did not have before her accurate or complete evidence or the totality of the evidence, including all the tapes and/or transcripts of the directed interviews and the CCTV footage. The essence of the applicant’s allegation is reflected in the following extract from his final further written submissions (at [23]) (omitting citations):
In light of the weight that was placed on the CCTV footage and the differing interpretations given by F/A Deller and the Adjudicator together with the opinion of the Adjudicator that it was a case of the applicant’s version of events versus that of the complainant and other police, it was incumbent upon the first respondent to satisfy herself that the foundation of her decision was based on evidence reasonably capable of sustaining it or alternatively that the Adjudicator had made a decision on all of the relevant evidence not just on the evidence as summarised by the investigator. The failure to do so amounts to a breach of natural justice, more so where the applicant submits that the totality of the evidence paints a picture different to that of F/A Deller and the Adjudicator and which justifies the applicant’s use of force.
165 In my view there is a fundamental difficulty with this aspect of the applicant’s procedural unfairness case. Acceptance of the applicant’s argument would be tantamount to compelling the first respondent, in exercising her delegated powers under s 40TV, to review the investigation report prepared under s 40TU and the adjudicator’s report with a view to determining whether there was evidence to support their findings and/or recommendations, including by reference to all “relevant evidence” and not simply that which was available to the investigator and/or adjudicator. That proposition sits uncomfortably with the multi-stage decision-making scheme authorised by the AFP Act and the administrative instruments made under it. That scheme contemplates that the decision-making process is potentially divided into three distinct parts or segments. The first part involves the conduct of an investigation of a category 3 conduct issue by an investigator. The second part of the process (which arises under administrative arrangements put in place by CO2, which itself was made under ss 38 and 40RC of the AFP Act) involves an adjudication panel whose task is to consider any recommendations made in a s 40TU report and to make findings and determine appropriate action in relation to the category 3 conduct issue. The third and final part of the scheme involves the Commissioner or his or her delegate determining whether or not to take termination action in relation to an AFP employee (see ss 40TR(2) and 40TV). The first stage of the process attracts a statutory obligation on the investigator to ensure that the AFP appointee and any complainant is given an adequate opportunity to be heard in relation to the category 3 conduct issue, subject to the requirements of the investigation (s 40TQ(2)). Although there is no express statutory requirement equivalent to s 40TQ(2), common law procedural fairness requirements apply in respect of both the second and third stages of the process. That is not to say, however, that the content of the statutorily-imposed and common law requirements are identical in all three stages.
166 Acceptance of the applicant’s submission would mean that, in conducting the third stage of the decision-making process, the first respondent was not entitled to act upon Mr Whowell’s finding that the complaint was established and that she was obliged, in effect, to undertake her own investigation and fact-finding exercise with a view to determining whether or not there was “evidence reasonably capable of sustaining” the finding that the complaint was established. That would substantially undermine the multi-stage decision-making scheme and involve a substantial duplication of resources which can scarcely have been intended. As emphasised above, that is not to say that the first respondent was immune from procedural fairness requirements. She plainly was not and it is evident from the steps taken by her, including the provision to the applicant of the Show Cause Notice, the accompanying materials and an opportunity to respond, that she set out to comply with those requirements. Procedural fairness did not oblige her to effectively re-conduct the investigation and adjudication underpinning the finding that the applicant had engaged in category 3 conduct.
167 The first respondent’s task under s 40TV (acting as the Commissioner’s delegate) was to determine what, if any, sanction should be imposed having regard to the report of the investigation prepared in accordance with s 40TU and such other relevant material as was placed before her (which included the material produced by Mr Whowell). Her statutory task was not to conduct a fresh investigation of the complaint as the applicant appears to suggest. Of course, if it is demonstrated in subsequent judicial review proceedings that a report made under s 40TU is affected by some legal error which has the effect of vitiating the report, that is likely to have important (and potentially fatal consequences) for any action taken under s 40TV which is based either in whole or in part upon such a report. Moreover, in an appropriate case it may well be that, even absent a successful judicial review challenge, the ultimate decision-maker acting under s 40TV is persuaded that the report is affected by jurisdictional error and, therefore, could not be relied upon because, in law, it is not a valid report (see, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 per Gaudron and Gummow JJ and at 618 per McHugh J), but that is not the way the applicant put his case here.
(b) Failure to follow procedures required by law
168 It is convenient to deal with this aspect of the applicant’s case by reference to the multiple individual matters raised by him as constituting failures to observe mandatory procedures.
(i) CCTV footage
169 As noted above, the applicant viewed the relevant CCTV footage of the incident on three separate occasions and took advantage of the opportunity to make submissions on it. Neither s 40TQ(2), the Guidelines nor common law procedural fairness requirements necessitated that he be provided with his own copy of the CCTV footage.
(ii) Sufficiency of information provided to the applicant
170 Nor do I accept that there was any legal obligation on the first and second respondents to provide the applicant with full copies of the taped records of interviews with the complainant and other witnesses to the incident. For the reasons given above in respect of the applicant’s related complaint of procedural unfairness, I consider that the summaries of that evidence contained in the investigation report were adequate for the purpose of enabling the applicant to understand the issues and actions alleged against him under the complaint and the redactions which were made were appropriate in the circumstances. There is nothing in the AFP Act or any of the relevant administrative instruments which entitled the applicant to be provided with any additional information to that which he was given in accordance with procedural fairness obligations.
(iii) Sufficiency of information provided to the first respondent
171 For similar reasons to that given above in rejecting the applicant’s related complaint of procedural unfairness concerning the adequacy of the information provided to the first respondent for the purpose of her determining whether or not to terminate the applicant’s employment, I consider that the first respondent had before her all sufficient information, including the applicant’s response to the Show Cause Notice. There is nothing in the relevant legislative framework or administrative instruments which mandated that additional information had to be provided to the first respondent, or that she had to conduct her own independent inquiry into whether the complaint was established, including reviewing for herself the CCTV footage or reviewing the taped records of interview.
(iv) FA Deller’s alleged comments on applicant’s response to Show Cause Notice
172 This complaint must be rejected. Although pleaded, there is simply no evidence indicating that FA Deller ever saw – let alone commented on – the Show Cause Notice. And although the complaint was pressed, no submission was made in support of it.
(v) Conduct of the investigation consistent with predetermined outcome
173 It is not easy to understand the precise content of this complaint in circumstances where it was not further particularised and no explicit submissions were made on behalf the applicant in direct reference to it. In any event, I do not consider that the applicant has discharged his onus of establishing the complaint. The applicant was unable to point to any procedures that were required by law and which were not observed or caused the outcome to be predetermined. In my view, the outcome of the investigation was not predetermined by either FA Deller or Mr Whowell. I repeat and rely on the findings I made above in rejecting the applicant’s allegation of apprehended bias on the part of FA Deller. For completeness, I also note that no separate similar allegation was made against Mr Whowell, nor was it put to him in cross-examination that he had predetermined the outcome of the adjudication.
(vi) Non-compliance with clause 15.3 of CO2
174 Clause 15.3 states:
The Panel will comprise MPRS and authorised senior executive AFP employees. The Commissioner can also appoint external appointees with appropriate knowledge and experience as a senior executive. To ensure consistent practice, MPRS will be responsible for managing, directing, and quality assuring the panel’s decision making.
175 The applicant says that, on its proper construction, this required that any adjudication of the complaint against him had to comprise at least two people, if not all members appointed to the Panel. He says that the adjudication should have been presided over by both MPRS and all appointees to the Panel or, alternatively, MPRS and at least one appointee to the Panel. He says that because the adjudication was carried out by Mr Whowell alone, procedures required by law were not observed. In support of his contention that all Panel members had to participate in the adjudication, he also relied on clause 15 of the Guideline, part of which states:
All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation.
176 I reject these submissions for the following reasons. First, accepting for the sake of argument that clause 15.3 of CO2 provides for procedures required by law to be observed, the applicant’s construction of that provision cannot be accepted. Merely because the Panel comprises MPRS and other persons, does not mean that any particular adjudication has to be carried out by all those people. Moreover, merely because MPRS is responsible for managing, directing and quality assuring the Panel’s decision-making, does not mean that MPRS has to sit in every adjudication along with either one other appointee to the Panel or, on the applicant’s alternative case, all other appointees. Those responsibilities can be discharged without MPRS having to sit in every adjudication.
177 Secondly, it is to be noted that clause 15.4 of CO2 provides that the process for adjudicating category 3 conduct issues is detailed in the Guideline. But far from supporting the applicant’s argument, clause 15 of the Guideline is inconsistent with it. In its full terms, that provision states:
The AFP Commissioner’s Order on Administration (Commissioner’s Order 1) delegates the authority to ensure appropriate action is taken in relation to Category 3 conduct issues and corruption issues.
MPRS may allocate investigation reports to Adjudication Panel members to adjudicate. MPRS will provide guidance to ensure consistency in the adjudication process.
All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation. An Adjudication Panel member may also decide to downgrade the conduct from category 3 should it be deemed appropriate.
178 The significant points to emerge from clause 15 of the Guideline are as follows:
(a) The reference in the third paragraph to “all” Adjudication Panel members determining whether or not a matter is established by reference to all relevant material in the investigation does not mean that all such members must participate in every adjudication. If that were the case, it is difficult to understand why a discretion is conferred on MPRS to allocate investigation reports to Panel members. That paragraph is directed at all members generally if and when they sit individually on a particular adjudication. It does not mandate that every adjudication be heard by all members.
(b) Furthermore, and perhaps even more significantly, the last sentence in the third paragraph of clause 15 unambiguously indicates that an adjudication can be carried out by a single Panel member.
(c) There is nothing in the terms of clause 15 to indicate that MPRS must sit in every adjudication, whether alone or in conjunction with one or more other Panel members.
(vii) Taking the applicant’s disciplinary history into account
179 For the following reasons I reject the applicant’s contention that procedures required by law to be observed were not observed because, it is alleged, that the applicant’s prior conduct (constituting four previously established complaints of excessive use of force in May and June 2010) were taken into account by FA Deller, Mr Whowell and the first respondent:
(a) I accept the respondents’ submissions that there were no procedures required by law which either precluded FA Deller from including those matters in the investigation report or prevented Mr Whowell from being aware of them when determining whether he should accept FA Deller’s recommendation that the complaint was established. It is notable in this respect that the applicant’s prior conduct was potentially relevant to the proper discharge of the functions of both FA Deller and Mr Whowell. That is because FA Deller’s statutory function, if satisfied that the applicant had engaged in category 3 conduct, was to make recommendations (at his discretion) about sanctions, which discretion would necessarily take into account the applicant’s antecedents. The same may be said in respect of Mr Whowell’s functions.
(b) In any event, I am not prepared to infer that either FA Deller or Mr Whowell took into account the applicant’s prior disciplinary history when respectively recommending or finding that the complaint against him should be, or was, established. As the respondents point out, Mr Whowell gave unchallenged evidence to the contrary and, although the applicant’s prior disciplinary history was noted in the background section to the investigation report, no reference is made to it in that section of the report relating to FA Deller’s consideration of the complaint or his recommended finding that it be found established. In [2.3] of the investigation report, FA Deller expressly recorded that he did not consider that those former matters had any impact on his investigation of the 26 May 2012 incident.
(c) Finally, it is plain that the first respondent could and should take into account the applicant’s disciplinary history when considering under s 28 of the AFP Act whether or not he was suitable to remain an AFP employee, not the least when that history included four previously established complaints of use of excessive force and the applicant had been given a formal warning in November 2011 that his future employment suitability would be considered if there was any further misconduct by him, particularly serious misconduct.
(c) Taking into account irrelevant considerations
180 As noted above, the applicant claimed that a considerable number of matters which were described as “irrelevant considerations” were taken into account in the course of the investigation, the adjudication and ultimately the decision to terminate his employment. Before considering those individual complaints, it is convenient to say something about the concept of an irrelevant consideration in the context of judicial review. For a consideration to be irrelevant, it needs to be established that the decision-maker is forbidden or prohibited by the subject matter, scope or purpose of the relevant legislation from taking the consideration into account in the exercise of a discretionary power. The concept is, in effect, the obverse of the concept of failure to take into account a relevant consideration (see the classic analysis of that head of review in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J (Peko-Wallsend)): the former is prohibited while the latter is mandated (see Minister Administering the Crown Land Acts v Illawarra Local Aboriginal Land Council [2009] NSWCA 289 at [40] per Hodgson JA). I also respectfully agree with the following observations of Basten JA in Ballantyne v Workcover Authority of NSW [2007] NSWCA 239 at[113]:
In the language of judicial review, “relevant considerations” are mandatory considerations in the sense that any failure to take them into account, in circumstances where they are engaged, will be an error in point of law. A similar principle is reflected in the concept of “irrelevant considerations”. These are factors which are extraneous to the proper exercise of the power, so that to take into account will also reveal legal error. These two categories do not, however, constitute an exclusive description of matters which may be considered. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated or precluded….
181 The applicant’s case seemed to be conducted on the basis that considerations were either relevant or irrelevant, a proposition which flies in the face of the observations made immediately above. For the following reasons, I consider that the applicant’s argument that multiple irrelevant considerations were taken into account is misconceived, either because the matters in question were not taken into account or, alternatively, if they were, they were not irrelevant considerations in the proper legal sense:
(a) the applicant’s prior conduct was not taken into account by Mr Whowell in determining to accept FA Deller’s recommendation that it be found that the complaint was established (see [179](b) above), but it was taken into account in Mr Whowell’s consideration of the issue whether he should make any recommendations regarding sanctions. Such consideration was not irrelevant either in that context or in the context of the first respondent’s decision on sanction;
(b) it is not easy to understand the applicant’s pleaded complaint that the first respondent’s decision to terminate the applicant’s employment took into account an irrelevant consideration which is described as “the Adjudication made recommendations beyond the scope of its inquiry”. It is incontrovertible that the first respondent took into account Mr Whowell’s adjudication, but it is difficult to see how the first respondent also took into account that the adjudication made recommendations which were beyond the scope of its inquiry. In taking into account the adjudication report the first respondent proceeded on the basis that the report had been validly made and not that its recommendations were beyond the scope of proper inquiry. Putting that matter to one side, however, the fundamental point is that the adjudication report did not make ultra vires recommendations and the first respondent did not take into account any irrelevant consideration in acting upon that report in determining to terminate the applicant’s employment;
(c) for similar reasons, the applicant’s complaint that the termination decision took into account irrelevant considerations because it was based on acceptance of the adjudication by Mr Whowell should also be rejected. Mr Whowell did not take into account the applicant’s prior conduct in determining to accept FA Deller’s recommendation that the complaint be found established and it was not inappropriate for Mr Whowell to then address the question of sanction in the terms that he did. And for the same reasons as those given above, there was no error in the first respondent not undertaking her own consideration of whether the complaint was established by reference to her own review of the CCTV footage and other materials which the applicant says had to be independently reviewed and made the subject of independent findings by her as to whether the complaint was established;
(d) nor was the role of Alpha 8 an irrelevant consideration in the context of any of the three stages of the decision-making. There was nothing in the relevant legislative framework which precluded that matter being taken into account, particularly in circumstances where that in fact was the role which the applicant was meant to be performing on the night in question. The applicant himself had made reference to the role of Alpha 8 in a minute dated 15 June 2012 prepared by him seeking the revocation of his suspension, as FA Deller noted in [4.20] of the investigation report. Nor do I consider that it was an irrelevant consideration for Mr Whowell to take into account his finding that the applicant had not demonstrated the judgment and acumen expected of Alpha 8 in the circumstances leading up to the incident, in not accepting the applicant’s account of why it was appropriate to use the force that he did. The issue of the objective soundness of the applicant’s judgment was at the heart of the issue whether or not he was justified in using the force that he did;
(e) the applicant also complains that by taking into account the matters in [1] to [4] of the adjudication report, irrelevant considerations were taken into account because he says that those matters may have been relevant generally to the applicant’s conduct as a police officer, but had no relevance to any use of force. He says that his decision to use capsicum spray was entirely subjective having regard to the existence of factors based on his belief and fear that he was at risk of being assaulted by Adam and that none of those factors “enlivened” a consideration of whether the applicant understood the use of a move on direction, whether he supported the alleged victim or the alcohol targeting team or whether he was sufficiently apprised of key developments. In my view, the legislative scheme did not preclude these matters being taken into account. They were not irrelevant considerations in the legal sense of that concept. Rather, it was open to Mr Whowell to view those matters as considerations which were relevant to the task at hand and, irrespective of whether or not they were considerations which were bound to be taken into account, they were not irrelevant considerations; and
(f) as to the complaint that it was an irrelevant consideration to take into account Mr Whowell’s assessment at [5] and [6] of the adjudication report that the question of the appropriateness of the use of force by the applicant was an analysis of two competing versions, namely that of the applicant on the one hand and that of the complainant and the other police present on the other, I have some difficulty in viewing this matter as a “consideration” in the relevant sense, as opposed to the manifestation of Mr Whowell’s analysis or fact-finding. The applicant may well wish to contest the correctness of this aspect of Mr Whowell’s analysis or fact-finding but that does not convert the subject-matter into an irrelevant consideration. Nor should the applicant be permitted to circumvent the well-known limitations on a judicial review court reviewing findings of fact by an administrative decision maker by resorting to the head of review known as “irrelevant considerations”. Even if Mr Whowell was wrong in characterising the different versions of events in the way that he did (and I do not suggest that he was wrong), that would amount to an erroneous finding of fact which is generally unreviewable in a judicial review, rather than present an irrelevant consideration.
(d) Failure to take into account relevant considerations
182 Consideration of the applicant’s contention that there were seven matters which he says were relevant considerations and which were not taken into account in the investigation, adjudication and ultimate termination decision has to occur against the background of the now well established proposition that this head of review is only available in respect of relevant considerations which were bound to be taken into account, having regard to the subject matter, scope and purpose of the relevant legislation (see Peko-Wallsend at 39-40 per Mason J). It is equally important to resist converting matters which are properly to be regarded as findings of fact into “considerations” for the purpose of this head of review.
183 In my opinion, the applicant has failed to make good his contentions in respect of any of these matters because:
(a) as to the complaint that Supt Timson’s opinion on the use of force was not taken into account I consider that, irrespective of whether or not there was an obligation to take that opinion into account, it was in fact taken into account. In that context, both Mr Whowell and the first respondent were entitled to act upon the summary of that opinion set out in the investigation report. In any event, and as noted above at [147] that opinion added little if anything to the matters which needed to be considered by reference to the relevant terms of CO3;
(b) as to the complaint regarding the failure to take into account the totality of the relevant evidence of the witnesses, including that of Supt Timson, there was no such obligation and the summary of that evidence set out in the investigation report was adequate for reasons given above; and
(c) as to the complaint concerning the failure to take into account an adequately prepared “salient points” of the evidence of Supt Timson and other witnesses, I do not accept the applicant’s contentions that this aspect of the investigation report was inadequate or incorrect or that the investigation report otherwise failed accurately to summarise the witnesses’ evidence or to contain accurate descriptions of the “salient points” of that evidence (see [156] above).
(e) Bad faith
184 In my opinion, the applicant has singularly failed to make good any aspect of his allegations of bad faith as raised in both the third further amended originating application and the reply. The applicant carried a heavy onus in making good these serious allegations. In my view there was no proper foundation for the making of such serious claims. The fact that the allegations were raised and pressed reinforces the overall impression that the applicant’s case took a scatter gun approach and one which attempted to draw the Court into an impermissible review of the merits.
185 I accept the respondents’ submissions that in order for bad faith to be established in a judicial review case, the applicant must establish a lack of an honest or genuine attempt by a public decision-maker to exercise their statutory power in a bona fide manner. I respectfully agree with the following observations of Gyles J on this issue in NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210 at [24] (which reflect the particular facts of the case there involving an allegation of bad faith against a member of the Refugee Review Tribunal) (omitting citations):
Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit…or wilful blindness…What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him - tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.
186 The applicant’s bad faith case against both the first and second respondents depended on much the same matters as underpinned his allegation of apprehended bias on the part of the first respondent. It is difficult to see how those matters, even if established, could also ground without more a claim of bad faith having regard to the meaning in a judicial review context of the concept of bad faith (the position might be different if actual bias was made out but no such case was argued here, nor could it have been). In any event, in the circumstances rejection of the applicant’s apprehended bias case must also require rejection of his separate claims of bad faith.
(f) Unreasonableness
187 As noted above, the applicant’s case of unreasonableness focused on the exercise of the power under s 28 of the AFP Act in terminating his employment. The matters particularised in support of that claim largely picked up on other heads of judicial review raised by him unsuccessfully. Accordingly, his unreasonableness case must also be rejected and I need say little more by way of explanation than to refer to and adopt the reasons I have given above for rejecting the other relevant heads of review. I make the following additional comments and findings:
(a) I accept the respondents’ submissions that it was not unreasonable in the Wednesbury sense (as explained in Li) for Mr Whowell to conclude as he did that there were basically two versions of the appropriateness of the applicant’s use of force on Adam: the applicant’s version and the view of the complainant and other police witnesses. I also agree that, even if it were accepted for the sake of argument that that analysis was inaccurate or incorrect, it was not demonstrated that it had any material impact on Mr Whowell’s ultimate decision to accept FA Deller’s recommendation that the complaint be found to be established. There was ample evidence and other material before Mr Whowell to support that conclusion;
(b) it was not unreasonable in the relevant legal sense for Mr Whowell to take into account the material placed before him in determining to accept FA Deller’s recommendation, nor to have regard to his own observations of the CCTV footage (which he said were consistent with the summaries of the evidence set out at pages 9-16 of the investigation report). For the reasons given above I do not accept that he was obliged to listen to all the taped records of interview for himself and, as the respondents also submitted, it was not suggested to him in cross examination that there was some relevant fact or circumstance of which he was not aware which would have materially affected his conclusion to accept the recommendation;
(c) there is also force in the respondents’ separate submission that there is a factual misconception in that aspect of the applicant’s unreasonableness case which turned on the allegation that the investigator and adjudicator made decisions and findings based on the CCTV footage when a proper review of that footage was not reasonably capable of sustaining such decisions and findings. FA Deller acknowledged in [4.45] of the investigation report that the footage was inconclusive and that it was therefore necessary for him to consider the evidence of the various officers who were there, in addition to the footage, in determining what had happened. Likewise, Mr Whowell did not restrict his task to a simple review of the CCTV footage - he also took into account the summaries set out in the investigation report of the evidence of all the witnesses, including Supt Timson;
(d) another misconception is evident in that aspect of the applicant’s unreasonableness case which asserted that various erroneous findings of fact were made by the investigator and the findings were said to be made on the basis of suspicion or speculation relating to the issue whether Adam was complying with the move on direction. FA Deller made no binding findings of fact as such in circumstances where his task was to produce a report expressing opinions and recommendations for the consideration of the adjudicator. In my view, it was not unreasonable in the Wednesbury sense for FA Deller to hold the opinion that he did on the relevant matters, particularly in circumstances where several witnesses (including Sgt Walls and Constables Raue and Carter) gave evidence to the effect that that is what they actually observed; and
(e) finally, as to the applicant’s claim that the first respondent’s decision was manifestly unreasonable in that it relied upon the adjudication which the applicant says was unreliable, inaccurate and irrational because of 10 propositions set out in [13] of the applicant’s final further written submissions, I accept the respondents’ submissions that none of those propositions was put to Mr Whowell as to why they caused his ultimate conclusion to be flawed, or why they made any difference to that conclusion. In any event, those propositions substantially reflect other complaints raised by the applicant under other heads of judicial review which have been rejected above.
(g) Abuse of power
188 The matters relied upon by the applicant in support of this head of review are the same matters raised in support of his unreasonableness case. In my view, the applicant has failed to establish any of the matters relied upon by him and, accordingly, his abuse of power case must also fail.
(h) Otherwise contrary to law
189 As noted above, the matters particularised by the applicant in support of this residual head of review strongly suggest that the applicant was impermissibly seeking to impugn the merits of the first respondent’s decision. And in any event, each of the matters relied upon should be rejected for the following reasons:
(a) no improper finding of serious misconduct was made by the first respondent. There was ample evidence before her to support the conclusion that the applicant had engaged in category 3 conduct and that his actions amounted to serious misconduct within the relevant definitions in ss 40K(3) and 40RP of the AFP Act;
(b) I am not persuaded that either the investigation or the adjudication was “not properly conducted” as alleged by the applicant;
(c) the allegation that the information before the investigation and adjudication was insufficient to make a finding of serious misconduct contains the same factual misconception in relation to the nature of the investigation as identified in [187(d)] above. Insofar as Mr Whowell’s conclusion is concerned, the applicant has failed to identify any unlawfulness arising from his finding that the applicant had used excessive force against Adam, which amounted to serious misconduct; and
(d) for the reasons given above, it was not unlawful for the first respondent to accept and rely upon the investigation and adjudication in finding that the applicant had engaged in serious misconduct as opposed to her independently considering whether the material available to the investigator and adjudicator supported such a finding.
(i) Conduct
190 The applicant’s challenge to the lawfulness of various conduct under s 6 of the ADJR Act must also be rejected for the following reasons:
(a) the claim that the first respondent breached the rules of natural justice in making the termination decision by reference to her involvement in various matters in 2004, 2005 and 2006 affecting the applicant is misconceived because those matters do not constitute conduct on the part of the first respondent for the purpose of the making of her termination decision. In any event, just as those matters did not provide a sufficient basis for the purposes of the apprehended bias allegation for reasons given above, nor do they here;
(b) likewise, the claim that the first respondent failed to observe procedures that were required by law to be observed in connection with the making of the termination decision is misconceived because the first respondent did not engage in the investigation or adjudication of the complaint and there were no procedures required by law to be observed which were not observed in the period leading up to the making of the termination decision;
(c) the claim that the making of the termination decision involved conduct which constituted an improper exercise of the power conferred on the first respondent under s 28 of the AFP Act is misconceived not only because no such conduct on the part of the first respondent personally is identified, but also because the applicant’s case based on improper exercise of power has been rejected for reasons given above at [180]–[189]; and
(d) the claim is based on the allegation that the first respondent’s decision was otherwise contrary to law suffers from the same fundamental difficulties in the sense that the applicant has not only failed to identify any relevant conduct of the first respondent personally, but the contrary to law claim has been rejected for the reasons given above at [189].
Conclusion
191 For these reasons, the third further amended originating application should be dismissed and the applicant ordered to pay the costs of the respondents.
I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
Associate:
Dated: 3 February 2014
Schedule – Aide-memoir provided by the respondents
ANNEXURE A
Quote from transcript of Sergeant Scott Walls dated 7 June 2012
Page - Line; Q and A | Quote in Annexure A to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 4 Line 10-12; Q&A 26 | We decided that evening to spend most of our time assisting the Woden response patrols and providing a police presence there too, with a view to deterring any violence. | Page 6 (4.3), 1st dot point | Q&A 23 Q&A 25 |
Page 4 Line 14-16; Q&A 27 | Just a decision on the night. I spoke with Woden patrol supervisor and I also notified alpha eight that we’d probably require him there as well to keep an eye on the situation, given the number of police resources that were in attendance. | ||
Page 4 Line 31; Q&A 32 | Oh he was intoxicated and I’d say agitated and slightly uncooperative | Page 6 (4.3), 5th dot point | |
Page 5 Line 1-3; Q&A 35 | He clearly had a large laceration on his finger, so he’d been involved in some sort of altercation. The security staff said he’d been ejected from the premises and told that he wasn’t returning in there | Page 6 (4.3), 3rd dot point | Q&A 31 |
Page 8 Line 8; Q&A 73, Q&A 74 | Well he stood there and eyeballed Sergeant Coutts. | Page 7, 17th dot point; page 8, para 4.2 | Q&A 80 |
Page 8 Line 16; Q&A 78 | . I mean I guess h[is] demeanour became threatening at that stage. | Page 7, 10th dot point | Q&A 60 |
Page 13 Line 21-23; Q&A 148 | INTERVIEWER: Were you close enough that you could hear the conversation that the constables were having with the male person? RESPONDENT: No, not really. Not word for word. I couldn’t say | Not pressed by Applicant | |
Page 13 Line 28 - Page 14 Line 3; Q&A 151 | INTERVIEWER: Okay, did he give exhibit any behaviour that would give rise to the apprehension of violence? RESPONDENT: … yeah I guess a moderate amount I guess. Obviously he was intoxicated and he had blood on him and like a lot of drunk people are. Everyone that is drunk is difficult and belligerent. He was a big guy too. I guess he was obviously a body builder. | Page 6 (4.3), last dot point |
ANNEXURE B
Quote from transcript of Constable Troy Lawrence dated 13 June 2012
Page - Line; Q and A | Quote in Annexure B to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 3 Line 22-23; Q&A 21 | Normally when a heat night like that occurs at a pub or club, it normally bring the wrong elements that normally call with antisocial behaviour | ||
Page 4 Line 29; Q&A 37 | he was quite intoxicated. He was a big fella, | Page 8, 3rd dot point | |
Page 4 Line 31 - Page 5 Line 2; Q&A 37, Q&A 38 | I asked him how he’d done that and he was intoxicated to such a degree that he said he didn’t understand the question. He looked at me and said no my mates going inside to get that. So I repeated my question to him and he said again my mates going inside to see that and I’ve just [09:00] kind of gone okay you’re obviously not understanding what I’m saying. | Page 8, 3rd dot point | |
Page 8 Line 17 - 18; Q&A 85 | Definitely, definitely. If it had have been civic, then it would have been someone I would have been happy to leave him in the care of. | Not pressed by Applicant | |
Page 10 Line 27-28; Q&A114, Q&A115 | Just to try and lessen the amount of alcohol related violence in the licensed premises areas and that’s the way were going to approach it. | Not pressed by Applicant | |
Page 11 Line 6-7; Q&A 118
| Given that he couldn’t even understand the simple question that I’d asked him of how he’d injured his hand, I probably would have thought about | Page 8, 9th dot point | |
Page 11 Line 10-11; Q&A 119, Q&A 120, Q&A121 | I wouldn’t even bother with the move on direction, just because his understanding of it [22:00] wouldn’t have been too great anyway. | Page 8, 9th dot point | |
Page 11 Line 28-30; Q&A 128, Q&A130 | He was a bit stand off-ish but it was more -- I don’t know how to put it. He was argumentative to the point that he didn’t do anything wrong -- … -- but still drunk | Page 8, 10th dot point | |
Page 12 Line 3-4; Q&A 132, Q&A 133 | I did think if he went off there were going to be dramas, because he was a pretty big guy. | Page 8, 10th dot point | |
Page 12 Line 6; Q&A 134 | But at the time I didn’t feel that he -- I’d done anything for him to go off. | Not pressed by Applicant | |
Page 12 Line 8-11; Q&A 135 | Just the way he was standing; he kept shrugging his shoulders, it just looked like he might. He’d either been inside or had a fight or he was working himself up to have a fight. I couldn’t work out what. | Page 8, last dot point |
ANNEXURE C
Quote from transcript of Constable Robert Raue dated 13 June 2012
Page - Line; Q and A | Quote in Annexure C to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 6 Line 4-6; Q&A 44 | Sergeant Brett Coutts’ job was to stand there. The purpose for him standing there was to make sure that this guy didn’t go away. I don’t think he, yeah that was his purpose in standing there. | ||
Page 6 Line 16-17; Q&A 45 | and was looking fairly agitated and the agitation was directed towards Sergeant Coutts. | Page 9, 11th and 15th dot points; page 10, para 4.6 | Q&A 125 |
Page 6 Line 25; Q&A 48, Q&A 49, Q&A 50 | He looked like he was paying attention, however he was visibly agitated and angry. | Page 9, 11th dot point | |
Page 6 Line 27; Q&A 51 | he was I suppose shaking his head and yeah | ||
Page 7 Line 13-17; Q&A 58 | I probably -- usually when I finish it I say to the person so you understand you’ll be -- words to the effect of you understand you’ll be [20:30] arrested if you remain in this area, so you need to leave. I would have asked him where and how he was going to get home as well and I found out that he was getting his mate to drop him home. | Not pressed by Applicant | |
Page 11 Line 7-9; Q&A 101 | So, the spray would have been justified, had the male indicated that he was about to launch an attack against Sergeant [34:00] Coutts or someone else. If that happened, I didn’t see it. | Page 9, 23rd dot point; page 10, para 4.6 | |
Page 11 Line 29-36; Q&A 106 | Yeah it says, ‘I have reasonable grounds to believe that you have engaged or likely to engage in violent conduct. I am now giving you a direction to leave this area. You have (and there is a blank space) minutes to comply with this direction’. [36:00] I always say five minutes whenever I give this direction. Then it says, ‘You must go in the indicated direction (and then it has in brackets… point. I would have pointed when that was read out). ‘You must not return to this vicinity for a period of six hours. If you return or fail to obey [36:30] any part of this direction, you may be arrested.’ | Page 9, 14th, 16th 17th and 18th dot points | |
Page 13 Line 8-21; Q&A 117, Q&A 118; Q&A 119; Q&A 120; Q&A 121; Q&A 122 | The male was indicating to me that he had a problem with the sergeant and he was -- I [40:00] think he was directing a bit of speech back towards the sergeant, but I don’t recall what it was. INTERVIEWER: When you say speech, was it swearing language and that sort of thing? Or was it just like -- RESPONDENT: Probably this fucking guy here, that kind of thing. INTERVIEWER: Yeah, okay. You mentioned clenching his teeth… did he make any other threats of violence? Like maybe a pose or shape up, that sort of thing? RESPONDENT: [40:30] Yeah, he was flexing his arms as well. INTERVIEWER: When you say flexing his arms, how did he do it? Like a pose or? RESPONDENT: Just clenching his fists sort of thing, yeah… clenching his fists. INTERVIEWER: That wasn’t directed at you? He was annoyed at something else was he? RESPONDENT: [41:00] Yeah I felt quite confident that he wasn’t going to attack me, but I wasn’t so sure that he wasn’t going to attack the sergeant. | Page 9, 11th, 12th and 15th dot points; page 10, para 4.6 | |
Page 14 Line 5-15; Q&A 130; Q&A 131 | There hasn’t been any I suppose conspiring talk or anything between us, but the only [42:30] thing I could think of that wasn’t mentioned was the conversation in the car afterwards. That was from Sergeant Walls -- between Sergeant Walls and I think, yeah First Constable Lawrence and myself and Sergeant Walls indicated to us that what had occurred wasn’t correct procedure and that First Constable Lawrence and I had done [43:00] the right thing by giving him the move on direction and that he didn’t -- Sergeant Walls didn’t really agree with what Sergeant Coutts had done. INTERVIEWER: Did you agree with that assessment or do you have an opinion of it? RESPONDENT: [43:30] I don’t agree with it or disagree with it, based on the fact that I don’t know all the facts, but from what Sergeant Walls said, if there was no apprehension of violence before the spray, if the male was in fact going to walk off, then I would agree with that. |
ANNEXURE D
Quote from transcript of Constable Nathan Nallo dated 14 June 2012
Page - Line; Q and A | Quote in Annexure D to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 5 Line 30-34; Q&A 43 | We spoke to him and he had no idea what was going on… Constable Lawrence asked him a few questions and his answers were completely off the planet. He referred to going back inside and getting it when Constable Lawrence was asking him about his injury. | Page 10 (4.7), 7th dot point | |
Page 6 Line 31; Q&A 43 | He was quite clearly under the influence of intoxicating liquor and or drugs. | Page 10 (4.7), 7th dot point | |
Page 6 Line 23; Q&A 50 | He was tense. He was a big guy and he was tense. I was concerned that if he did, he’d probably do a lot of damage to the police, if he did want to become violent. | Page 10 (4.7), 5th and 6th dot points | Q&A 43 |
Page 7 Line 24-26; Q&A 58 | There was another male that just kept intervening and saying no no I’ll take care of him, [16:00] I’ll take him back inside and nothing will happen. I’m like no you can't go back inside. | Not pressed by Applicant | |
Page 7 Line 28-31; Q&A 59 | He was a bit belligerent, didn’t want to listen to police and he just kept saying no no no don’t worry I’ll take care of him, it’s not a policing thing don’t worry about it. I’ll take him back inside. I don’t think he could understand that we were concerned that if he was to go back inside that something would happen. | Not pressed by Applicant | |
Page 7 Line 33; Q&A 60 | At one stage I said look he’s got to get in a taxi and go; why don’t you just take him home or put him in a taxi and get rid of him. He can't stay and then he goes oh I’ll go [16:30] inside to get my friends, but then he just coming back. I’ll just take him inside and look after him. | Not pressed by Applicant | |
Page 14 Line 5-13; Q&A 146; Q&A 147 | [32:00] From my experience in dealing with intoxicated people and large people, he looked like he wouldn’t pose any more of a physical threat to me and I was safe in that the role I was taking at that time, I wouldn’t have any primary contact with him or he wasn’t even a -- I don’t think his demeanour gave me the justification to have my OC spray out anymore. He stopped tensing up. He pretty much wasn’t carrying on as much as he was. He was still clearly intoxicated, but I just don’t think -- still don’t think he’d be [32:30] physically aggressive or violent towards me. In my mind I didn’t have anything to actually apprehend him for at that time, so I wasn’t considering actually taking him into custody for anything. So there was no point me having the OC spray out. | Page 10 (4.7), 6th dot point; page 11, para 4.8 | Q&A 119 |
Page 17 Line 5-9; Q&A 174 | I was suspicious of the fact he turned. In saying that I don’t know if Sergeant Coutts [42:30] called him or Sergeant Coutts said something to provoke him to turn or the male just turned because he was going to have a final comment toward Sergeant Coutts. I couldn’t see him. I was blocked by the sergeant -- I could see his head. I didn’t really have a clear view of his body. | Page 11 (4.7), 2nd and 5th dot points | |
Page 17 Line 19-23; Q&A 177; Q&A 178; Q&A 179; Q&A 180 | [43:30] He probably could have disengaged but he may have collided with other police. He did have quite a few police around him. In saying that, like if he disengaged one step there probably would have been enough room. I don’t think he’d have enough room to -- he was pretty close to the guy when he sprayed him. They were in right next to each other, so closer than we are at this table I’d guess. They weren’t talking loudly either, so conversation between them was at normal talking level. I guess if you wanted to de-escalate, you probably had a step or two maximum. I don’t think he could have really taken a few steps back and tried it from there. Yeah, [44:00] they were very very close, too close. I wouldn’t want to be that close to him. | Page 11 (4.7), 1st, 3rd and 12th dot points | |
Page 18 Line 1-6; Q&A 185 | I guess if Sergeant Coutts had concerns that he couldn’t take the guy into custody using other means. I don’t think he would have had an opportunity to take him. If he wanted to apprehend him and he had in his mind that he’s going to take him into custody for something, he probably wouldn’t have been able to take him down in an arm bar, or any of the approved methods. | Page 11 (4.7), 12th dot point; page 11, para 5.8 | |
Page 18 Line 8-13; Q&A 186; Q&A 187 | [45:30] Would not have been. I mean one, because of his proximity, two because I think he might have overpowered Sergeant Coutts if he did try and swing him down and he would know where to actually put him down -- takedown, because of the amount of people around him. I probably would have taken the de-escalation technique with that gentleman. If I was going to take him into custody, because of his size and he really [46:00] wasn’t out there to get a lock up, so. | Page 11 (4.7), 12th dot point; page 11, para 5.8 |
ANNEXURE E
Quote from transcript of Constable Chris Carter dated 15 June 2012
Page - Line; Q and A | Quote in Annexure E to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 5 Line 20-29; Q&A 41 | He was -- so he -- this male kept trying to take a step forward. He would after being directed, he tried to take a small step forward and Sergeant Coutts stopped him and said no stand there, don’t move. He continued doing very -- he continued doing very small actions that appeared to be maybe trying to aggravate Sergeant Coutts. First he tried to take a step forward, then he tried to take a very small step forward, then he sort of shuffled on his feet and attempted to move away. It certainly appeared to me that he was testing the waters and trying to see how far he could get. Each time he made a move Sergeant Coutts told him stay there. At some point he was given a move on direction by Constable Rob Raue I believe it was and then was told to leave the vicinity. | Page 11 (4.9), 6th and 7th dot points | |
Page 5 Line 31-32; Q&A 42 | I was standing with Sergeant Coutts in case he became violent. It was someone else’s decision and I’m not even sure why it was made. | Page 12 (4.9), 1st dot point | Q&A 52 |
Page 6 Line 1; Q&A 43 | Someone came up to him and gave him the move on direction. He argued and - | Page 12 (4.9), 4th and 5th dot points | Q&A 53 |
Page 6 Line 15-21; Q&A 49 | Oh yeah. The longer he stood there, he appeared to be eyeballing Sergeant Coutts and he was reasonably -- I thought his demeanour was reasonably aggressive when he came out of the club. However, this continued to heighten and at one point -- at one point during the conversation Brett Coutts said something -- words to the effect of because you’re a maggot or something like that. There was some -- from memory I can't remember the context and what it was said. I believe that he was arguing with Sergeant Coutts about why he had to stand there and from there -- | Page 11 (4.9), 4th 5th and 6th dot points | |
Page 6 Line 28-31; Q&A 52 | He was very argumentative and waving his arms around and certainly didn’t appear to be wanting to comply with any directions given to him by anyone. I remember when he came out -- at some point he had a conversation with First Constable Troy Lawrence | Page 12 (4.9), 2nd dot point | |
Page 6 Line 31-33; Q&A 52 | All I remember is that Troy was trying to explain something to him and he became highly argumentative, waved his arms around and I remember Troy was being quite reasonable with him. | Page 12 (4.9), 1st and 2nd dot points | |
Page 6 Line 34 - Page 7 Line 5; Q&A 53 | Once he’s been given that, I really need you to get him out of here because -- otherwise he’ll get locked up. His mate said not a problem; alright look I’ll get him out of here and I’ll take care of him. After the move on direction was given, the male started walking away | Page 12 (4.9), 3rd dot point | |
Page 7 Line 34; Q&A 54 | I believe he was pretty angry and I believe that he was showing it as a bit of -- | Page 12 (4.9), 1st dot point | |
Page 7 Line 25-26; Q&A 56 | to be honest I don’t know which way he was going. Sergeant Coutts was already standing sort of within his vicinity anyway, | ||
Page 7 Line 30-31; Q&A 57 | he’s stared at Sergeant Coutts in quite a confrontational manner and appeared to be tensing up | Page 12 (4.9), 7th dot point | |
Page 8 Line 23; Q&A 74 | Yes, he was staring at him in quite a confrontational manner. | Page 12 (4.9), 7th dot point | |
Page 8 Line 28; Q&A 76 | As Mr Hickey was walking past, he continued to eyeball Sergeant Coutts | Page 12 (4.9), 7th dot point | |
Page 9 Line 19; Q&A 82 | Yes. He was angry, | ||
Page 10 Line 8; Q&A 92 | He wasn’t angry. I don’t recall him being angry. | ||
Page 11 Line 1-3; Q&A 103 | Because there were a large amount of police there. The male was talking. He was being [22:00] quite aggressive towards us, however he wasn’t -- he wasn’t making any threats towards us. He just appeared to be puffing his chest out. | Page 12 (4.9), 1st and 6th dot points | |
Page 12 Line 1-2; Q&A 116 | I just said look, they’re about to give him the move on direction. Once that is given to him, please by all means get him out of here and keep him out of trouble. | Not pressed by Applicant | |
Page 12 Line 5-6; Q&A 117 | Yes, I think if Mr Hickey had become any more aggressive, his friend wouldn’t have been able to stop him, | ||
Page 12 Line 12-16; Q&A 121, Q&A 122 | Mr Hickey was quite strong and four or five police got him to the back of a van and Mr Hickey didn’t want to get in. It should be pointed out though -- to be honest I don’t remember whether I put in a use of force on this -- four or five police were trying to get him in the back of the van and they couldn’t do it. | Page 12 (4.9), last dot point | |
Page 12 Line 20-25; Q&A 125; Q&A 126 | He was doing everything in his power to avoid getting in there and I can't remember whether he was pushing or kicking against the sides, trying to stop getting in. Yeah, he wouldn’t comply with any police directions to get in. I wasn’t part of that at the time. I stood back and watched part of that and when I realised that the constables weren’t having any success and that he was resisting, | ||
Page 14 Line 8-15; Q&A 146; Q&A 147 | Mr Hickey came to my attention when he was standing outside. He was quite fired up and some other police -- I believe it was Constable Troy Lawrence, was trying to speak with him. ... I just remember he seemed quite aggressive outside the club. A lot of the police there that night were reasonably new cops and a lot of them weren’t terribly big. At that point I figured well I’m going stand over there so that if he does fire up with anyone speaking to him, well then there’s a couple of other guys around there that can deal with him. | Page 12 (4.9), 2nd dot point; page 12, para 4.10 | |
Page 14 Line 19-25; Q&A 148 | He seemed to have a reaction to every police officer he spoke to. He was spoken to by a couple police there. When he was speaking to them, he appeared disinterested [30:30] wanting to speak with them. He argued with them and tried to walk away and was just general -- … -- I remember one of the people on my team, First Constable Troy Lawrence tried to speak to him and he wouldn’t listen to him. Sergeant Coutts I think just wouldn’t give him an inch, to get under his skin. | Page 11 (4.9), last dot point; page 12 (4.9), 2nd dot point | |
Page 14 Line 36 - Page 15 Line 2; Q&A 152 | I just remember that Constable Lawrence became increasingly frustrated trying to speak to him. …. The male was argumentative, belligerent, wanted to walk away and Constable Lawrence had said look please stop, I need to talk to you. | Page 12 (4.9), 2nd dot point | Q&A 52 |
Page 15 Line 15; Q&A 157 | I just stood next to him in case he fired up. | ||
Page 15 Line 27-29; Q&A 163 | He didn’t even acknowledge I was there. He was that fired up at Sergeant Coutts. I never spoke to him. I didn’t have any interaction with him. I was just a body there. | Page 12 (4.9), 1st dot point | Q&A 164 |
Page 15 Line 31; Q&A 164 | He was generally fired up at police. | Page 12 (4.9), 1st dot point | |
Page 16 Line 4-8; Q&A 165 | The guy kept trying to take a step forward then a half step forward then kept trying to shuffle away and just appeared to be trying to test ... I think at some point he made a comment about why he had to stand there or had to do something. He was basically being belligerent | Page 11 (4.9), 6th dot point | |
Page 16 Line 25-27; Q&A 173 | I remember he was facing the cage. I remember there were constables trying to put arm locks and wrist locks -- whatever, I’m trying to get him to comply from memory. I think I grabbed him by the back of the jeans by the belt, lifted him and sort of heaved him in. | ||
Page 17 Line 20-24; Q&A 184 | In the entire incident in this guy’s arrest do you mean? I believe Sergeant Coutts was standing there providing the manpower. I mean I know he’s alpha eight. He’s a former beat sergeant and when he arrived, this male was being quite disruptive. He stood there to make sure the male who was being quite belligerent, was complying with police directions and basically didn’t run over the top of us. | Page 11 (4.9), 2nd dot point | |
Page 18 Line 1-10; Q&A 186 | Yeah, look honestly I actually do. I think it was necessary for him to at least stand there. A lot of the constables -- I remember at one point looking at a few of the constables who were on with us that night, thinking to myself that if this really turns bad, we’re in trouble. The guys on my team, we work out a lot. I’ve done a lot of boxing, a lot of martial arts in my younger days. We’ve got Troy Lawrence who’s a former prison guard. We’ve got another guy working with us who was a bouncer. When we get into conflict in the city, we as a team can walk in generally feeling confident that someone has got our back. A lot of these newer guys are a little bit smaller, we don’t know who they are and they don’t have a lot of experience. So, I think in that situation, I think it was definitely warranted that Sergeant Coutts stood there. | Page 12, para 4.10 | |
Page 18 Line 15-19; Q&A 188, Q&A 189 | I do know of alpha eights who have appeared at incidents -- large incidents usually. They’ll very quickly take command. It often depends on the personality of whoever is doing it. There may someone who is quite happy for constables -- to let the constables take care of it, then I hear of alpha eights who conduct forty traffic stops in a night and go to every job. | ||
Page 18 Line 21-22; Q&A 190 | No, I’ve seen an alpha eight follow an aggressive male around a corner in town before, but I’ve never seen an alpha eight get involved in a use of force incident, no. |
ANNEXURE F
Quote from transcript of Constable Damien Clarke dated 21 June 2012
Page - Line; Q and A | Quote in Annexure F to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 5 Line 2-7; Q&A 34; Q&A 35 | Not really, just every time that they raised their voice, was probably the only time I sort of heard and then when they tried -- he kept trying to walk off and they’d like put a hand on his chest, just stay there, trying to work out what’s going on, sort of thing. Then from that they must have obtained bona fides, I think. It was Constable Raue who was taking his details and from there, the gentleman was allowed to leave. I didn’t think anything more of the situation. | Page 12 (4.11), 6th and 8th dot points | |
Page 5 Line 28; Q&A 47 | It was in, sort of in his direction. | Page 12 (4.11), last dot point | |
Page 6 Line 11-12; Q&A 54 | The male was facing Sergeant Coutts, Sergeant Coutts was obviously facing him and then distance I would estimate maybe about a metre and a half at most and then | Page 12 (4.11), last dot point | |
Page 7 Line 10; Q&A 62 | he was very belligerent | Page 12 (4.11), 6th dot point | |
Page 7 Line 12-14; Q&A 63 | Just his body language, he didn’t want to comply with any sort of police directions, he kept trying to walk past when they were trying to talk to him. They were trying to sort out what happened inside. | Page 12 (4.11), 6th dot point | |
Page 8 Line 19-22; Q&A 85, Q&A 86, Q&A 87 | Then yeah, I don’t know really how it sort of transpired with Sergeant Coutts. I wasn’t paying attention to the male at that time and then all I remember hearing was Sergeant Coutts going you couldn’t let it go could you mate, or words to that effect. That’s when I smelt the OC spray | Page 13 (4.11), 1st dot point; page 13, para 4.12 | Q&A 51, Q&A 53 |
Page 9 Line 12-14; Q&A 100 | He was -- he perceived to be an aggressive kind of person, like he was, he just didn’t care about the three officers in front of him. He was just, his whole demeanour… he came across to me as an aggressive kind of person. | Page 13, para 4.12 | |
Page 10 Line 28-31; Q&A 119 | Well he said -- he was pretty arrogant that guy. He was like, just because he told them to fuck off -- you can’t go doing that just because he said fuck off, it’s not against the law to tell a coppa [sic] to fuck off and all that sort of stuff. So he was very belligerent. He was also pretty intoxicated as well. | Page 13 (4.11), 5th and 6th dot points | |
Page 11 Line 10-12; Q&A 122, Q&A 123 | Like I said, I didn’t get the full sort of he said she said sort of thing. However, considering the need to go hands on with it, obviously someone that size and due to his demeanour prior, I think OC spray was probably justifiable. | Page 13 (4.11), last dot point |
ANNEXURE G
Quote from transcript of Constable John Callaghan dated 22 June 2012
Page - Line; Q and A | Quote in Annexure G to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 4 Line 6-8; Q&A 25 | Sergeant Robert Lester approached us and said that he thought there were a number of Rebels present and that about 01:30am - it would have been the 26th May - he wanted as many resources there as possible | Not pressed by Applicant | |
Page 6 Line 19-21; Q&A 47 | INTERVIEWER: [13:00] Did you have concerns about this male in any way? RESPONDENT: Only that he’d attracted so much police attention, which made me think he must have done something, but I didn’t see him do anything. | Page 13 (4.13), 6th dot point |
ANNEXURE H
Quote from transcript of Superintendent Peter Timson - 24 July 2012
Page - Line; Q and A | Quote in Annexure H to Further Amended Originating Application | Salient Points in PRS Investigation Report | Additional transcript references to salient point |
Page 3 Line 24-26; Q&A 23 | I was the subject matter expert for the AFP in relation to use of force and was the secretary for the operational safety committee during that time. | Page 23, para 4.37 | |
Page 7 Line 22-27; Q&A 63; Q&A 64; Q&A 65 | RESPONDENT: I can't even -- to be perfectly honest, I cannot see -- INTERVIEWER: Yeah. RESPONDENT: -- unless you can point it out to me, exactly where -- INTERVIEWER: Where the spray is deployed? RESPONDENT: -- where the spray is deployed by -- it’s not clear to me. | Page 23, para 4.37 | |
Page 8 Line 10-34; Q&A 71 - Q&A 88 | Yeah. Okay, so based on seeing him sprayed there, my professional opinion is that if in accordance with CO3 at the time, that person has -- gives some demeanour or reaction that he’s about to assault him, then it’s a defensible action. So, if the officer believes due to his demeanour, his skillset, clenched fists you know... targeted fixation or is about to turn around and hit him and he believes in CO3, then that is justified and it is if you believe that is the case, then that is a justifiable application. However, if -- and I will say this helicopter view from the CCTV does not give any of the demeanour dimensions to the event -- if however there is no information provided by the officer as to why it has occurred, then it would appear that that would be in breach of CO3, if for the simple fact that he’s just sprayed the person and cannot explain why. INTERVIEWER: Yeah, okay. RESPONDENT: That’s my professional opinion. So, if I was in that circumstance or if one of my staff were in that circumstance and that person suddenly clenched a fist was about to strike me, I would have given a queue and due to the fact that if they are and they’ve been given intelligence all night that they are OMCG’s or they are meeting there and the adrenaline is high and you believe that that sort of quick reaction is required, then I believe that would be justified. However, if you cannot explain as to why that occurred, then yes I would say that it would be in a breach of CO3 in relation to the application of OC. INTERVIEWER: Okay. Yeah can I just say… it is a bit far away -- RESPONDENT: This does not give you what he actually believes at the time -- CCTV can never do that. However, it does show the circumstances step by step. Yes he was there and yes he did use it. However, what he believed at the time -- that’s what he believed. INTERVIEWER: Yeah that’s right. | Page 23, para 4.37 | |
Page 9 Line 1-19; Q&A 88 - Q&A 99 | RESPONDENT: I mean dependent on what he’s told yourselves on the direction; that’s up to you to decide. INTERVIEWER: Yeah. RESPONDENT: And obviously MPRS. INTERVIEWER: Yeah, no that’s fine. RESPONDENT: That’s my opinion. INTERVIEWER: Yeah, no worries and that’s what we basically would have wanted, just to show someone else just so you -- RESPONDENT: Yeah. INTERVIEWER: -- and to ask what the lead up and if there were any -- RESPONDENT: Yeah, yeah. INTERVIEWER: [27:30] -- extenuating circumstance. As you said [?][00:27:35] queues can be small. RESPONDENT: Yeah, they can be and if he has provided that as to why he’s used it, then to me if I was the team leader assessing this use of force report, then to me that would be deemed as justified, if someone suddenly clenched a fist or gave a target glance or said something -- made reference to coming back or the shoulder shift and all the things that they do [28:00] that officers as you know learn. Yes, then that would be justified in defending yourself. But, if he hasn’t said any of that and can't explain why he’s done it, I’d say that would be excessive. | Page 23, para 4.37 |
